State v. Bailey , 131 Haw. 365 ( 2013 )

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Electronically Filed
Supreme Court
SCWC-12-0000396
24-DEC-2013
07:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o—
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
BLADESIN-ISAIAH BAILEY, Petitioner/Defendant-Appellant,
and
ANDREW JOSIAH RODRIGUEZ, Respondent/Defendant.
SCWC-12-0000396
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000396; CR. NO. 10-1-0819)
December 24, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold, first, that proof that any part of an offense
occurred on the island of Oahu is sufficient to establish venue
in the first judicial circuit. Here, because several witnesses
testified that the alleged Kidnapping committed by Petitioner/
Defendant-Appellant Bladesin-Isaiah Bailey (Petitioner) occurred
on the island of Oahu, there was sufficient evidence to
demonstrate that the first judicial circuit was the correct
venue.
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Second, we hold that Respondent-Plaintiff/Appellee
State of Hawai#i (the State) must prove beyond a reasonable doubt
that substantial bodily injury was caused by the defendant in
order to disprove the mitigating defense that reduces the offense
of Kidnapping, Hawai#i Revised Statutes (HRS) § 707-720(3) (Supp.
2008)1, from a Class A felony2 to a Class B felony,3 because,
inter alia, the victim was not suffering from substantial bodily
injury when released.
Third, we hold that the State must only disprove one of
the three elements of the Class B mitigating defense set forth in
HRS § 707-702(3) beyond a reasonable doubt to establish that a
defendant is not entitled to the defense. In other words, the
1
HRS § 707-720 provides in relevant part as follows:
§ 707-720 Kidnapping.
(1) A person commits the offense of kidnapping if the
person intentionally or knowingly restrains another
person with intent to:
. . .
(e) Terrorize that person or a third person;
. . . .
(2) Except as provided in subsection (3), kidnapping
is a class A felony.
(3) In a prosecution for kidnapping, it is a defense
which reduces the offense to a class B felony that the
defendant voluntarily released the victim, alive and
not suffering from serious or substantial bodily
injury, in a safe place prior to trial.
(Emphasis added.)
2
Kidnapping is a Class A felony. HRS § 707-720(2). The court
ordinarily must sentence a defendant convicted of a Class A felony to a
maximum length of imprisonment of twenty years, without the possibility of
suspension of sentence or probation. HRS § 706-659 (Supp. 1994). The minimum
length of imprisonment is to be determined by the Hawai#i Paroling Authority.
Id.
3
A defendant convicted of a Class B felony ordinarily must be
sentenced to a maximum length of imprisonment of ten years, with the minimum
length of imprisonment to be determined by the Hawai#i paroling authority.
HRS § 706-660 (1993).
2
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State must establish beyond a reasonable doubt that a defendant
did not voluntarily release the victim, or that the defendant
caused serious or substantial bodily injury to the victim, or
that the victim was not released in a safe place. In this case,
Petitioner did not challenge the jury’s special interrogatories
finding that the victim was not voluntarily released, and that
the victim was not released in a safe place. Hence, Petitioner
was not entitled to the Class B mitigating defense.
For the reasons stated herein, the August 21, 2013
Judgment of the Intermediate Court of Appeals (ICA)4 filed
pursuant to its July 10, 2013 Summary Disposition Order (SDO),
and the March 19, 2012 Judgment of Conviction and Sentence of the
Circuit Court of the First Circuit (the court)5 are affirmed.
I.
A.
On the morning of May 15, 2010, Ezra Kualaau,
(Complainant) contacted Andrew Rodriguez (Rodriguez) through
several text messages and phone calls, to buy crack cocaine.
After picking up Petitioner, the two defendants headed to
Complainant’s house in a white “Chevy” Impala. Complainant,
wearing basketball shorts and no shirt or shoes, joined
Petitioner and Rodriguez at a park across the street from his
4
Chief Judge Craig H. Nakamura and Associate Judges Alexa D.M.
Fujise and Lisa M. Ginoza presided.
5
The Honorable Karen S.S. Ahn presided.
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house. Complainant and his mother testified that their house was
located on Ka#ahumanu Street in Waiau, on the island of O#ahu.
Rodriguez sat in the driver’s seat, Petitioner in the
front passenger’s seat, and Complainant in the back seat. After
noticing a police car pass by, Petitioner and Rodriguez “looked
at each other and then Petitioner went to the trunk.”
Complainant then started “getting punched[,]” and “whacked on the
side of [his] head in [his] temple and then phased out.” After
getting punched the first time by Petitioner, Complainant
testified that he fell onto his left side, at which time
Petitioner continued to punch him a couple of more times.
Rodriguez then got out of the car and handcuffed Complainant
behind his back. Petitioner “grabbed [Complainant] at [his]
ankles . . . and they took [him] to the trunk.” They closed the
trunk with Complainant inside and drove off.
Two witnesses, Renante Lagat (Renante) and his wife
Melva Lagat (Melva), were driving on Komo Mai Drive past the
Waiau Park and noticed a white car by itself and “saw two guys
put an individual in the car[,]” with his hands “bound” at his
back. The individual “being thrown into the trunk of the car”
was “[a] white male, fairly skinny” with “no shirt.” Renante
testified that “one of . . . the ones putting the person in the
car” was “wearing a red shirt.” Honolulu Police Department
Officer Donn Manzano (Officer Manzano) also testified that he was
patrolling the Pearl City area near Komo Mai Drive on the island
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of Oahu when he noticed a white vehicle in the parking lot of
Waiau District Park.
While in the trunk, Complainant managed to remove his
cell phone from his pocket, and texted his mother to tell her
that he had been kidnapped. Complainant also called 911. At the
end of a cul-de-sac street, the car stopped and the defendants
took Complainant out of the trunk. A plastic bag and cloth were
put over Complainant’s head.
Complainant testified that after pulling him out of the
trunk, the two defendants proceeded to walk him up a trail, “or
not a trail, but bushes[,]” during which he was “pushed over
rocks, through bushes.” Complainant further related that
Petitioner threatened that Complainant was not to “make noise or
I’m gonna put -- or I’m gonna shoot you.” At the top of the
trail, Petitioner and Rodriguez “sat [him] down and started
punching [him] in the face” “multiple times” while the bag was
still over Complainant’s head, and he was still handcuffed behind
[his] back. They then “shoved [Complainant] to the ground[,]
. . . ripped the bag off [his] face and ran off.” Complainant,
after hearing the car door slam, ran back down the trail to get
help.
Officer Halama Wong (Officer Wong) was patrolling the
Moanalua Valley area of Oahu when she was dispatched to Onipa#a
Street, where Complainant had made a call to the police from a
nearby house. When Officer Wong arrived, Complainant was
handcuffed and crying, with “abrasions” on his face, chest, and
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back, as well as what appeared to be a swollen nose. According
to Officer Wong, Complainant appeared frightened, and “had a hard
time speaking.”
Complainant was taken to Kaiser Moanalua Emergency Room
by his mother, where he was examined by Dr. Saba Russell (Dr.
Russell). During the examination, Dr. Russell observed “multiple
contusions and abrasion throughout [Complainant’s] extremities,
the arms and legs, as well as the face.” She also found that he
had suffered a nasal bone fracture. The age of the fracture was
indeterminable based on the X-ray. However, Dr. Russell opined
that the swelling and bruising over the cheek and nose were
consistent with characteristics of a new fracture.
While Complainant was being examined for his injuries,
Officer Tay Deering (Officer Deering) was dispatched to a
possible Kidnapping at Waiau District Park on the island of
O#ahu, but, on the way, observed and stopped a white “Impala” on
Salt Lake Boulevard. Officer Legaee Fatu (Officer Fatu), who was
with Officer Deering at the time, identified Petitioner as the
passenger in the car and noticed that he was wearing a red shirt.
Officer Deering identified Rodriguez as the driver of the car.
Both Officer Fatu and Officer Deering testified that neither
Rodriguez nor Petitioner appeared to have any injuries, and
neither complained of having any.
B.
The State indicted Petitioner and Rodriguez on May 20,
2010 on one count of Kidnapping (Count I) and one count of
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Assault in the Second Degree6 (Count II):
COUNT I: On or about the 15 th day of May, 2010, in the City
and County of Honolulu, State of Hawai#i, [Rodriguez] and
[Petitioner], did intentionally or knowingly restrain
[Complainant], with intent to terrorize him, . . . thereby
committing the offense of Kidnapping, in violation of
Section . . . 707-720(1)(e) of the [HRS].
COUNT II: On or about the 15 th day of May, 2010, in the
City and County of Honolulu, State of Hawai#i, [Rodriguez]
and [Petitioner] did intentionally or knowingly cause
substantial bodily injury to [Complainant], and/or did
recklessly cause substantial bodily injury to [Complainant],
thereby committing the offense of Assault in the Second
Degree, in violation of Section 707-711(1)(a) and/or Section
707-711(b) of the [HRS].
(Emphases added.) Trial began on January 6, 2012. The witnesses
called in the State’s case were Complainant, Complainant’s
mother, Renante, Melva, Dr. Russell, and Officers Fatu, Deering,
Wong, and Manzano.
At the close of the State’s case, Petitioner moved the
court for a judgement of acquittal. His argument was that the
State failed to prove venue. The court denied Petitioner’s
motion. The following discussion occurred:
[Mr. Luiz (Counsel for Petitioner)]: Actually, the
State never proved venue in this case. Not one witness from
the beginning to the end ever testified that this occurred
in the City and County of Honolulu. No witness was asked
that. As a matter of fact, I kept track of all the
witnesses who testified and each officer who testified was
never asked if this occurred in the City and County of
Honolulu . . . and because venue is absolutely essential
that must be proven that this did in fact occur in the City
and County of Honolulu and not the County of Maui, the
6
HRS § 707-711 (provides in relevant part as follows:
§ 707-711 Assault in the second degree.
(1) A person commits the offense of assault in the second
degree if:
(a) The person intentionally or knowingly causes substantial
bodily injury to another;
(b) The person recklessly causes serious or substantial
bodily injury to another;
. . .
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County of Big Island. We [are] entitled to a directed
verdict on all counts since the State rested without proving
venue.
THE COURT: You know, my notes show that venue was–the
venue question was asked of [Complainant] regarding him
being in front of his house. And in addition, the venue
question was asked of Officer Manzano regarding the Waiau
District Park. I’m going to look at the evidence in light
more favorable to the Government. I can take judicial
notice, I think, of venue, and I do so. But looking at the
evidence in the light most favorable to the Government and
considering the jury’s right to weigh credibility and draw
all reasonable inferences of fact I believe a reasonable
juror can conclude guilt beyond a reasonable doubt as to
Kidnapping and the Assault II with regard to [Petitioner]
. . . .
THE COURT: Let me just note that I’m looking at my
notes with regard to the venue issue. The venue question
was asked of Officer [] Wong as to Onipa#a Street where
[Complainant] was allegedly found . . . I think there’s a
reasonable inference that that car never left this island,
so venue was established. Okay. All right . . .
[Mr. Luiz]: . . . I never heard the question on City
and County of Honolulu, I heard–
THE COURT: Well, it just has to be this island.
(Emphases added.)
While Petitioner exercised his right not to testify,
Rodriguez did testify. Rodriguez recounted that Complainant
contacted him to buy drugs, but that he and Petitioner met
Complainant in order to retrieve money that a friend claimed
Complainant stole from her. Rodriguez admitted to handcuffing
Complainant, putting him in the trunk, as well as driving to
Moanalua with Complainant in the trunk of the car, because
“that’s where [Complainant] said the person who was holding the
money was at.” Moreover, Rodriguez testified that when he
stopped the car and opened the trunk, Complainant jumped out of
the trunk and ran into some neighbors’ yard; Rodriguez also
stated that at that point, he drove away. Rodriguez claimed that
he did not place a bag over Complainant’s head and he did not
walk Complainant up a trail.
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C.
The court instructed the jury in relevant part as
follows:
In Count 1, [Petitioner] is charged with the offense of
Kidnapping.
. . . .
There are three material element of the offense of
[K]idnapping, each of which the prosecution must prove
beyond a reasonable doubt.
. . . .
1. That, on or about May 15, 2010, in the City and
County of Honolulu, State of Hawai#i, [Petitioner]
restrained [Complainant]; and
2. That [Petitioner] did so intentionally or
knowingly; and
3. That [Petitioner] did so with the intent to
terrorize [Complainant].
In Count 2, [Petitioner] is charged with the offense of
Assault in the Second Degree.
. . . .
There are two material elements of the offense of Assault in
the Second Degree, each of which the prosecution must prove
beyond a reasonable doubt.
1. That, on or about May 15, 2010, in the City and
County of Honolulu, State of Hawai#i, [Petitioner] caused
substantial bodily injury[7 ] to [Complainant]; and
2. That [Petitioner] did so intentionally, knowingly,
or recklessly.
As to the lesser included offense of Assault in the Third Degree,
the court instructed the jury, in part, as follows:
In Count 2, as to [Petitioner], if, and only if, you find
[Petitioner][] not guilty of Assault in the Second Degree,
or you are unable to reach a unanimous verdict as to this
offense, then you must consider whether [Petitioner] is
guilty or not guilty of the included offense of Assault in
the Third Degree.
A person commits the offense of Assault in the Third Degree
if he intentionally, knowingly, or recklessly causes bodily
injury to another person.
There are two material elements of the offense of Assault in
7
“Substantial bodily injury” is defined as bodily injury which
causes “(1) A major avulsion, laceration, or penetration of the skin; (2) A
burn of at least second degree severity; (3) A bone fracture; (4) A serious
concussion; or (5) A tearing, rupture, or corrosive damage to the esophagus,
viscera, or other internal organs.” HRS § 707-700 (Supp. 2008).
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the Third Degree,[8 ] each of which the prosecution must prove
beyond a reasonable doubt.
. . . .
1. That, on or about May 15, 2010, in the City and
County of Honolulu, State of Hawai#i, [Petitioner] caused
bodily injury[ 9] to [Complainant]; and
2. That [Petitioner] did so intentionally, knowingly,
or recklessly.
As to accomplice liability, the court’s instructions
stated in relevant part as follows:
A defendant charged with committing an offense may be
guilty because he is an accomplice of another person in the
commission of the offense. The prosecution must prove
accomplice liability beyond a reasonable doubt.
A person is an accomplice of another in the commission
of an offense if, with the intent to promote or facilitate
the commission of the offense, he aids or agrees or attempts
to aid the other person in the planning or commission of the
offense.
Mere presence at the scene of an offense or knowledge
that an offense is being committed, without more, does not
make a person an accomplice to the offense. However, if a
person plans or participates in the commission of an offense
with the intent to promote or facilitate the offense, he is
an accomplice to the commission of the offense.
(Emphases added.)
D.
In his closing argument, the prosecutor asserted that
Complainant suffered substantial bodily injury when the punches
to his face fractured his nose:
[The prosecutor]: There’s [] no dispute that [Complainant]
was found on Onipa#a Street still handcuffed, Officer Wong
told you that. [Complainant] was crying. He had scratches
8
HRS § 707-712 provides in relevant part as follows:
Assault in the third degree.
(1) A person commits the offense of assault in the third
degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
. . . .
(2) Assault in the third degree is a misdemeanor unless
committed in a fight or scuffle entered into by mutual
consent, in which case it is a petty misdemeanor.
9
“Bodily injury” is defined as “physical pain, illness, or any
impairment of physical condition.” HRS § 707-700.
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and cuts, not only to his facial area which corroborated the
punches that he got but also to his body and the shoulder
and the body area.
What’s also undisputed is that this is how
[Complainant] looked when he was found on Onipa#a Street with
a swollen nose, the scratches and cuts on his face as well
as the swollen wrist where Officer Wong told you that's the
result after he took off the handcuffs from [Complainant] on
Onipa#a Street.
There’s also no dispute that he did suffer the
substantial bodily injury. Doctor told you that there was a
bone fracture; that that bone fracture was consistent with
the swollen nose injury that she observed on [Complainant]
on May 15th, 2010.
After reading the x-ray, she told you that it was a
nasal bone fracture. Although, as she testified, because of
the nature of the fracture on the nasal bone she couldn't
tell exactly when that bone was broken. [Complainant] told
you that he had no prior broken nose. So based on all of
that there’s a reasonable inference that that fracture, the
nasal bone fracture was a result of what happened on May
15th, 2010.
[Complainant] also sustained consistent injuries. The
pictures that they took on May 15th, 2010 corroborate
[Complainant’s] statement that he was punched to the face,
mostly to the face.
. . . .
(Emphases added.)
The prosecutor also asserted that Petitioner and
Rodriguez had not met the requirements for the mitigating defense
that would reduce the Kidnapping charge to a Class B felony:
As to the interrogatories that you have to answer,
there are questions about the release -- in the shape and
the form that [Complainant] was released by the defendant.
First, is whether it was voluntary. And, frankly, given the
state of the evidence on the credible evidence, yeah, they
did let him go in that it's not like the police had to come
and release the trunk and let [Complainant] out or anything
like that, okay. So, for what it's worth, it is not in that
kind of situation. So was he released voluntarily? Okay,
questionable, but -- but as to whether he was released alive
"and" not suffering from serious or substantially bodily
injury. Now there's an "and" which means that he had to had
not suffered any serious or substantial bodily injury. And
the substantial bodily injury we had talked about is the
Assault 2, the bone fracture.
Also, safe place. Is releasing [Complainant] where now
we know it’s on top of Onipa#a Street. At this point, based
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on the evidence, we know that it’s near a residential area.
But at the time that [Complainant] was released, face down
right after having his bag and the cloth taken off, after
he’s been pushed up the hill, anywhere between 5 to 15
minutes -- he told you on the stand it was 5. He might have
told, at a prior proceeding, 15 minutes. Is that a safe
place where he doesn’t know where to come out? There’s no
path. In fact, he goes the other way because he thinks that
the defendants are gonna come back up the way they came --
they left. State will submit to you that it’s not a safe
place that he was released at. It was not like he was
released at a hospital, back at his house, back at the Waiau
District Park, back at the police station. So State would
submit to you that where he was released is not a safe
place. It’s just that [Complainant], throughout this
kidnapping, throughout this event on May 15th, 2010, was
thinking . . . even when he was released it was his own
thinking, quick thinking that got him out of that secluded
area and down to Onipa#a Street.
(Emphases added.)
In his closing argument, Mr. Hawk, counsel for
Rodriguez, asserted that the jury should reduce the Kidnapping
charge to a Class B felony:
[Mr. Hawk]: Was he voluntarily released? Absolutely. He ran
away. Was there serious bodily injury? There’s no fracture, so
there’s no serious or substantial bodily injury. And is Onipa#a
Street a safe place? I would think so. I mean, there was no
evidence that it was a dangerous place. It’s not like he was
released in the middle of the ocean or in the middle of the night
in some war zone. I mean, it’s just a residential area. There’s
nothing that’s dangerous about that place.
. . . .
Mr. Hawk also maintained that because there was not
proof beyond a reasonable doubt that the fracture was suffered
during the Kidnapping, Rodriguez was only guilty of assault in
the third degree:
What else did he do? Well, he was there when [Petitioner] got
slapped, right? He admitted - - not when [Petitioner] got slapped
but when [Petitioner] slapped [Complainant]. So he’s an
accomplice to that slap. That’s Assault in the Third Degree.
Slapping someone in the face causes pain, which is bodily injury,
so he’s guilty of Assault in the Third Degree and not guilty of
Assault in the Second Degree because there’s no fracture.
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Mr. Luiz, counsel for Petitioner, argued that the jury
should acquit Petitioner of Kidnapping and Assault in the Second
Degree but convict him of Unlawful Imprisonment in the Second
Degree and Assault in the Third Degree. As to the substantial
bodily injury, Mr. Luiz asserted that Dr. Russell did not testify
as to when Complainant fractured his nose and therefore
“[t]here’s no proof beyond a reasonable doubt that [Complainant]
sustained a fracture while he was with [Petitioner].”
Finally, apparently in response to the State’s argument
regarding reducing the Kidnapping offense to a Class B felony,
Mr. Luiz stated that:
They released [Complainant]. He was safe, residential area.
They didn’t drop him off anywhere where he could be hurt.
He just ran to a house and asked for more help from there.
He was released unharmed, and he didn’t have any substantial
bodily injuries.
In her rebuttal argument, the prosecutor argued that
Complainant’s testimony that he had not previously broken his
nose demonstrated that the bone fracture resulted from
“[Rodriguez] and [Petitioner] hitting [Complainant] in the face”:
[The prosecutor]: [Dr. Russell] saw injuries that are consistent
with what would have cause a bone fracture on May 15 th, 2010; that
they were swollen.
And what did [Complainant] tell you? I’ve never broken my nose.
I’ve never had a broken nose. So based on all of that what’s the
reasonable inference? That bone fracture happened as a result of
[Rodriguez] and [Petitioner] hitting [Complainant] in the face.
(Emphasis added.)
E.
On January 11, 2012, the jury found Petitioner and
Rodriguez guilty as charged of Kidnapping and guilty of the
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lesser included offense of Assault in the Third Degree. The jury
returned the following verdicts and answers to special
interrogatories:
As to Count 1, Kidnapping:
WE THE JURY in this case find the Defendant Guilty as charged.
As to Count 2, Assault in the Second Degree:
WE THE JURY in this case find the Defendant Guilty of the included
offense of Assault in the Third Degree.
SPECIAL INTERROGATORY:
Did the prosecution prove beyond a reasonable doubt that the fight
or scuffle was not entered into by mutual consent? (Your answer
to this question must be unanimous).
Yes.
SPECIAL INTERROGATORY:
1. Has the prosecution proven beyond a reasonable doubt that
prior to trial [Petitioner] did not release [Complainant]
voluntarily?
Yes.
2. Has the prosecution proven beyond a reasonable doubt that
prior to trial [Petitioner] did not release [Complainant] alive
and not suffering from serious or substantial bodily injury.
Yes.
3. Has the prosecution proven beyond a reasonable doubt that
prior to trial [Petitioner] did not release [Complainant] in a
safe place?
Yes.
(Emphases added).
F.
On January 20, 2012 Petitioner filed a motion for
judgment of acquittal concerning the following issues: (1) “[t]he
State did not properly prove venue in this case. The [i]sland of
Oahu was merely mentioned by a police officer. [No] witness
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state[d] that any of what they testified to occurred in the City
and County of Honolulu[,]” and (2) “[t]he Class A felony
[Kidnapping] should be reduced to Class B Kidnapping” because “it
is undisputable [sic] that . . . Complainant was released from
the trunk by Rodriguez without serious or substantial injury as
shown by the jury acquitting [him] of Assault in the second
degree . . . .”
During a hearing on the motion for judgment of
acquittal, Petitioner argued that the jury verdicts were
inconsistent, and repeated his argument that the State failed to
prove venue. Before denying Petitioner’s motion, the following
discussion between the Court and counsel for Petitioner occurred:
[Mr. Luiz]: And I really believe that’s an inconsistent
verdict, Your Honor . . . You can’t find–they’re all part of
the same crime, it was all the same time frame, the same
happening. And we have an inconsistency.”
THE COURT: Well, not necessarily because there’s another
possibility you folks haven’t discussed. The possibility is
that they found substantial bodily injury, the broken nose,
beyond a reasonable doubt but they weren’t sure who actually
broke that nose. Because both of there were, you know, the
testimony was that both of these gentlemen were hitting
[Complainant] at the end, you know, by the rock, where the
nose apparently was broken. And so the jury could have found
there was substantial bodily injury but they didn’t know
which of the two . . .had actually done the deed.
The Kidnapping question is do you believe that the
prosecution has proven beyond a reasonable doubt that
[Petitioner] voluntarily released the victim alive and not
suffering from substantial bodily injury in a safe place
prior to trial . . . it doesn’t call for determination of
which defendant, you know, broke the nose, it calls for the
defendant having left the complaining witness there with a
broken nose, a broken bone . . . I don’t think the verdicts
are necessarily inconsistent so I would have to disagree
with you there.
[Mr. Luiz]: Well, if they couldn’t agree on who did the
crime, then that would necessarily acquit both clients
because you can’t prove guilt beyond a reasonable doubt.
THE COURT: No but they--they found that each client was
proven beyond a reasonable doubt to have caused physical
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pain and that’s why they convicted these two gentlemen for
Assault 3. It’s a very interesting verdict. Actually it
may well have been a very intelligent jury. I mean, you
know.
(Emphases added.)
With regard to the venue issue, Mr. Luiz insisted that
the prosecution had to establish the incident occurred in “[t]he
City and County of Honolulu” in order to prove venue. The court
stated the following:
THE COURT: The statutes say that the prosecution has to
prove beyond a reasonable doubt facts supporting venue. And
venue of course is on this island of Oahu . . . venue was
testified to by witnesses for the Waiau District Park, the
complaining witness’s home, and finally, Onipa#a Street
where the complaining witness was eventually found.
And the testimony is undisputed that all other times he was
in the car trunk and they were driving on roads, like they
never went on a boat, they never went on a plane. So can I,
should I, you know, find that the government did not prove
facts supporting venue beyond a reasonable doubt on that
evidence? I don’t think I can.
On March 19, 2012, Petitioner and Rodriguez were each
sentenced as young adult defendants to an eight-year term of
imprisonment for Kidnapping and a one-year term of imprisonment
for the Assault in the Third Degree. Petitioner appealed.
On August 21, 2013 the ICA affirmed the convictions.
II.
In his Application, Petitioner asks whether the
judgments of the ICA and the court should be vacated because (1)
there was a “lack of substantial evidence regarding venue in the
City and County of Honolulu;” and (2) “the verdict was
inconsistent [because] [Petitioner] was not found guilty of
assault in the second degree” but instead was found guilty of the
lesser included offense of assault in the third degree, but
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nevertheless “was found guilty of Class A felony [K]idnapping.”
A Response was filed on October 2, 2013. No Reply was filed.
III.
With respect to the first question, the ICA observed
that HRS § 603-1 (Supp. 1994) states that “[t]he State is divided
into four judicial circuits . . . and that [t]he first judicial
circuit is the island of Oahu[,]” and that “the Revised Charter
of the City and County of Honolulu (RCCCH) § 1-102 (2000)”
indicates “that the City and County of Honolulu encompasses the
island of Oahu.” State v. Bailey, CAAP-12-0000396, 2013 WL
3776169, at *1 (Haw. App. July 10, 2013) (SDO). The ICA stated
that Petitioner “fails to point to any legal authority . . . that
the phrase ‘City and County of Honolulu’ must be used . . . and
that venue is not established by using the phrase ‘island of
Oahu[.]’” Id. The ICA further held that there was “testimony at
trial . . . establishing that the events took place on . . .
Oahu[,]” and the court “took judicial notice of venue when it
noted that the geographic areas described in various testimony
were all on the island of Oahu[.]” Id. Accordingly, the ICA
concluded that “[v]iewing the evidence in the strongest light for
the prosecution, sufficient evidence was adduced . . . that the
offense took place on . . . Oahu, thus establishing venue beyond
a reasonable doubt.” Id. at *2.
With respect to the second question, Petitioner argued
that “[Complainant] was released from the trunk . . . without
serious or substantial injury[,]” thus Petitioner “is guilty only
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of a [C]lass B Kidnapping felony.” Id. The ICA countered that,
as the court noted, “the jury could have concluded that:
[Complainant] had suffered ‘substantial bodily injury’ (i.e. a
broken nose)[,]” “a jury could find that a person suffered
‘substantial bodily injury,’ even though the jury could not
determine who caused that ‘substantial bodily injury[,]’” and
“the State had not . . . [proven] who caused the broken nose[,]”
but Petitioner “caused lesser ‘bodily injury’ for purposes of the
offense of Assault in the Third Degree.” Id. (emphases
omitted). Accordingly, the ICA concluded thus “there was
sufficient evidence for the jury to conclude that Complainant’s
nose was broken and thus, he suffered ‘substantial bodily
injury.’” Id. at *3. Further, the ICA observed “the jury
rejected [Petitioner’s] argument . . . that the offense should be
reduced to a Class B felony Kidnapping offense . . . [in its
answers to the] . . . special interrogatories[.]” Id.
IV.
In connection with the first question, Petitioner
maintains that (1) “HRS § 701-114[(1)(d)] [(1993)] provides in
relevant part . . . [that] no person may be convicted of an
offense unless [facts establishing venue] . . . are proven beyond
a reasonable doubt,” (2) “[Hawai#i Rules of Penal Procedure
(HRPP)] Rule 18, [in part] provides: . . . the prosecution shall
be had in the circuit in which the offense or any part of it was
committed,” (3) “proof that an event occurred in the City and
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County of Honolulu is proof that it occurred within the first
judicial circuit,” and (4) “[t]he [i]sland of Oahu was merely
mentioned by a police officer” and not “a single witness state[d]
that any of what they [sic] testified to occurred within the
venue of the City and County of Honolulu.” With respect to the
ICA’s decision, he maintains that (1) “State v. Puaoi, 78 Haw.
185, 190[, 891 P.2d 272, 277] ([]1995)[,] . . . is
distinguishable because in that case it was the prosecutor who
specifically requested judicial notice of facts establishing
venue, not the court sua sponte taking judicial notice of facts
establishing venue[,]” and (2) “[i]n the absence of proof of
venue, ‘the innocence of the defendant is presumed.’ [(Citing]
HRS § 701-114(2)[ and] State v. Black, 66 Haw. 530, 668 P.2d 32(1983) (prosecution’s failure to prove venue resulted in
defendant’s acquittal)[)].”10
V.
Under HRPP Rule 18, “the prosecution shall be had in
the circuit in which the offense or any part of it was
committed.” (Emphasis added.) Thus, to establish venue, it must
be proven that “any part” of the offense occurred in the circuit
10
In its Answering Brief, the State asserted that the testimony from
five different witnesses proved that the offenses occurred on the island of
Oahu. The State also contended that the ICA could “take judicial notice that
the locations testified to - Kaahumanu Street in Waiau, Waiau District Park,
Waiau Fire Station, Komo Mai Drive in Pearl City, Onipaa Street in the Salt
Lake-Moanalua Valley area, Kaiser Moanalua Emergency Room, and Salt Lake
Boulevard - collectively, are located on the island of Oahu, and in the first
judicial circuit.” (Citing Puaoi, 78 Hawai#i at 190, 891 P.2d at 277.) In
its Response, the State asserted that because Petitioner “reiterates his
argument [before the ICA], [the State] relies on its answering brief.”
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in which the case is tried. Pursuant to HRS § 701-114(1)(d)11,
“no person may be convicted of an offense unless . . . [venue is]
proved beyond a reasonable doubt[.]” A defendant may move for a
judgment of acquittal “on the grounds that the prosecution has
not proved the necessary element of venue.” State v. Kwak, 80
Hawai#i 297, 305, 909 P.2d 1112, 1120 (1995); see also State v.
Miyashiro, 3 Haw. App. 229, 232-33, 647 P.2d 302, 304-05 (1982).
“The standard to be applied by the trial court in
ruling upon a motion for a judgment of acquittal is whether, upon
the evidence viewed in the light most favorable to the
prosecution and in full recognition of the province of the [trier
of fact], a reasonable mind might fairly conclude guilt beyond a
reasonable doubt.” State v. Pone, 78 Hawai#i 262, 265, 892 P.2d
455, 458 (1995) (internal quotation marks omitted). “An
appellate court employs the same standard of review.” Id.This case was tried in the first judicial circuit.
“The first judicial circuit covers the [i]sland of O#ahu, all
other islands belonging to the state (other than Maui, Molokai,
Lanai, Kahoolawe, Molokini, Hawai#i, Kauai, and Niihau) . . . .”
State v. Correa, 5 Haw. App. 644, 650, 706 P.2d 1321, 1325 (1985)
11
HRS § 701-114(1)(d) provides in relevant part as follows:
§ 701-114 Proof beyond a reasonable doubt.
(1) Except as otherwise provided in section 701-115, no
person may be convicted of an offense unless the following
are proved beyond a reasonable doubt:
. . .
(d) Facts establishing venue[.]
(Emphases added.)
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(citing HRS § 603-1(1)). “Consequently, proof that an event
occurred . . . on the [i]sland of O#ahu is proof that it occurred
within the first judicial circuit.” Id. Here, viewed in the
light most favorable to the State, a reasonable mind could
“fairly conclude” that the offense occurred on the island of
O#ahu beyond a reasonable doubt.
Complainant indicated that he first met the defendants
in front of his house “on Kaahumanu Street,” “on the island of
Oahu[.]” Complainant related that after meeting the defendants,
they went to the park that was “directly across the street” from
his house. Officer Deering stated that the park was in the same
area as Ka#ahumanu Street “on the island of Oahu.” Similarly,
Officer Manzano testified that the park was near the Waiau Fire
Station, and the Fire Station was “on the island of Oahu.”
At the park, the defendants “whacked [Complainant] on
the side of [his] head,” handcuffed him, and put him in the trunk
of their car. The defendants drove with Complainant in the trunk
for “about an hour.” The defendants removed Complainant from
their car and took him to a spot on a hill, and then left.
Complainant then went down the road to an “old man’s house and
asked him to call the police.” Officer Wong then interviewed
Complainant. Officer Wong stated that the address of the house
was “1720 Onipa#a Street,” and the house was “on the [i]sland of
Oahu.”
Based on the foregoing, the evidence adduced at trial
demonstrates that the offense, or at least a “part of it,” see
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HRPP Rule 18, occurred on the island of O#ahu. The witnesses’
testimony indicates that the offense both began and ended on the
island of O#ahu. Moreover, as stated by the court, “the
testimony is undisputed that at all other times he was in the car
trunk and they were driving on roads, [] they never went on a
boat, they never went on a plane[.]” Thus, viewing the evidence
in a light most favorable to the State, a reasonable mind could
have “fairly concluded” that the events occurred on the island of
Oahu and thus, venue in the first circuit was established beyond
a reasonable doubt.12 Pone, 78 Hawai#i at 265, 892 P.2d at 458.
VI.
A.
In connection with the second question in his
Application, Petitioner contends that “Petitioner was [e]ntitled
to a [j]udgment of [a]cquittal as to Class A Felony Kidnapping”
12
Petitioner also asserts that the court and ICA erred in taking
judicial notice of venue. However, as discussed supra, sufficient evidence
was adduced to establish that a part of the offense occurred on the island of
Oahu without reference to judicial notice. In any event, Petitioner’s
assertion that the court could not sua sponte take judicial notice of venue is
incorrect.
Pursuant to Hawai#i Rules of Evidence (HRE) Rule 201 (1993), a
court may take judicial notice of adjudicative facts. “‘Adjudicative facts
. . . are the kind of facts that are ordinarily decided by the trier of fact;
for example, who did what to whom, when, where, how, and why[.]” Puaoi, 78
Hawai#i at 190, 891 P.2d at 277. In Puaoi, this court held that under HRE
Rule 201, “appellate courts may take judicial notice of venue[.]” Id. Under
HRE Rule 201(c), “[a] court may take judicial notice, whether requested or
not.” (Emphasis added.) Further, under HRE Rule 201(f), "Judicial notice may
be taken at any stage of the proceeding.” Thus, the court was entitled to sua
sponte take judicial notice of venue.
Similarly, in State v. Schnabel, 127 Hawai#i 432, 279 P.3d 1237(2012), this court discussed the propriety of sua sponte taking judicial
notice in the context of HRE Rule 202 (1993), which governs judicial notice of
law. This court held that evidence from prior juvenile convictions should not
have been admitted in a subsequent criminal prosecution under HRS § 571-84(h)
(2006 Repl.). Id. at 444, 279 P.3d at 1249. That statute was not raised by
either party; however, this court held that the trial court could have taken
judicial notice of the statute. Id.
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because of an “inconsistent verdict.” [Application at 8] As
noted, HRS § 707-720, Kidnapping, provides in relevant part:
. . . .
(2) Except as provided in subsection (3), kidnapping is a
Class A felony.
(3) In a prosecution for kidnapping, it is a defense which
reduces the offense to a class B felony that the defendant
voluntarily released the victim, alive and not suffering
from serious or substantial bodily injury, in a safe place
prior to trial.
According to Petitioner, he “was acquitted of Assault in the
[S]econd [D]egree but found guilty of the lesser included offense
of Assault in the [T]hird [D]egree.” Petitioner argues that thus
“[i]t is undisputable [sic] that . . . [Complainant] was released
from the trunk by Rodri[g]uez without serious or substantial
injury as shown by the jury acquitting [Petitioner] of Assault in
the second degree while finding him guilty of the lesser included
offense of Assault in the [T]hird [D]egree.” (Citing United
States v. Morales, 677 F.2d 1 (1st Cir. 1982).) Petitioner
concludes then that he “is entitled to a judgment of acquittal as
to Class A felony [K]idnapping[, and a reduction to a conviction
for] . . . Class B felony Kidnapping.”
B.
In its Answering Brief,13 the State maintained that by
finding Petitioner guilty of the lesser included offense of
Assault in the Third Degree, the jury found that the State
“proved beyond a reasonable doubt that [Petitioner] caused bodily
injury to [Complainant],” but that “the State did not prove
13
As stated before, in its Response, the State indicated that it
“relies on its answering brief.”
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beyond a reasonable doubt that [Petitioner] caused substantial
bodily injury to [Complainant].” The State argues that in
finding Petitioner guilty of Kidnapping as a Class A felony, “the
jury found that (1) [Petitioner] did not release [Complainant]
voluntarily, (2) [Complainant] suffered serious or substantial
bodily injury, and (3) [Petitioner] did not release [Complainant]
in a safe place.” (Citing HRS § 707-720(3).) Hence, the State
apparently asserts that the verdicts were not inconsistent
because the verdict indicated that “[Petitioner] caused bodily
injury and that [Complainant] suffered substantial bodily
injury.” (Emphases in original.)
VII.
First, the court and the ICA incorrectly concluded that
the mitigating Class B felony defense to Kidnapping required only
a finding that “an alleged victim was suffering from substantial
bodily injury,” but did not require a determination as to “who
caused substantial bodily injury to that alleged victim[.]”
Bailey, 2013 WL 3776169, at *2 (emphasis in the original). Such
a rule would preclude a defendant from availing himself or
herself of the Class B mitigating defense available in the
Kidnapping statute even if the injury suffered by the victim was
completely unrelated to the alleged Kidnapping.
The problems created by such an interpretation are
illustrated by the instant case. As explained in greater detail
infra, the State asserted that Complainant suffered “substantial
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bodily injury” because his nasal bone was fractured.14 However,
Dr. Russell asserted that she couldn’t “determine the age” of the
fracture. Therefore, in closing argument, defense counsel
asserted that no substantial bodily injury occurred because
“there’s no medical testimony as to when that nose was broken.”15
Assuming arguendo that Complainant fractured his nasal
bone prior to the Kidnapping, his nose still could have been
fractured at the time that he was released. At the time of his
release, therefore, he would have been “suffering” from a
fractured nose, and thus “suffering from substantial bodily
injury.” Hence, under the interpretation of HRS § 707-720
proposed by the court and the ICA, a defendant could not utilize
the Class B mitigating defense even if the substantial bodily
injury sustained by the victim had nothing to do with the
Kidnapping.
Such a result is clearly contrary to the purpose of the
Class B mitigating defense, to “differentiate according to the
14
In closing argument, the prosecutor asserted that “[t]here’s also
no dispute that he did suffer the substantial bodily injury” because Dr.
Russell stated that “there was a bone fracture; that that bone fracture was
consistent with the swollen nose injury she observed on [Complainant,]” and
that “[Complainant] told you that he had no prior broken nose[.]” Further, in
rebuttal argument, the prosecutor stated that the “bone fracture happened as
[Rodriguez] and [Petitioner] [were] hitting [Complainant] in the face.” Thus,
the State relied on the nasal bone fracture to establish substantial bodily
injury.
Additionally, when discussing the Class B mitigating defense
specifically, the prosecutor also asserted in closing argument that “the
substantial bodily injury we talked about is the Assault 2, the bone
fracture.” (Emphasis added.) Thus, the State took the position that the same
conduct both negatived the Class B mitigating defense and established the
commission of the offense of assault in the second degree.
15
In contrast, the prosecution asserted that it could be determined
that the fracture was sustained during the Kidnapping because Complainant
testified that he had not previously broken his nose.
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severity of the actual harm involved,” and to “encourage the
actor to proceed less dangerously once the criminal course of
conduct has begun.” Commentary to HRS §§ 707-720 to 722
(emphases added). Thus, the purpose of allowing a mitigating
defense would be undermined by only requiring the State to
demonstrate that the victim was suffering from a substantial
bodily injury at the time of his release. Instead, evidence must
have been adduced that demonstrates that the substantial bodily
injury was caused during the course of the Kidnapping by
Petitioner, or by the co-defendant as Petitioner’s accomplice, or
both.16
VIII.
Finally, Petitioner’s assertion that he is entitled to
the benefit of the Class B mitigating defense is incorrect.
Here, Petitioner was charged with Kidnapping based on the
unlawful restraint of Complainant with the intent to terrorize
him. The Class B mitigating defense is a non-affirmative
defense17 that applies to all versions of Kidnapping, see HRS §
16
To reiterate, the State asserted that the substantial bodily
injury suffered by Complainant was a broken nose. Complainant testified that
he was punched in the nose while there was a bag over his face, and that
Petitioner and Rodriguez were the only individuals present. Thus, the jury
could infer from the evidence that both Petitioner and Rodriguez struck
Complainant and that either of them or both could have caused Complainant’s
injuries. The court’s instructions stated that “[a] defendant charged with
committing an offense may be guilty because he is an accomplice of another
person in the commission of the offense.” Hence, the jury also could have
concluded that either Petitioner or Rodriguez caused the substantial bodily
injury and that the other defendant was liable as an accomplice.
17
“Affirmative defenses are those so designated by the [Hawai#i
Penal] Code or another statute; or defenses which the Hawai#i Penal Code or
another statute plainly require the defendant to prove by a preponderance of
the evidence.” State v. Gabrillo, 10 Haw. App. 448, 455, 877 P.2d 891, 894
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707-720(1), and reduces the severity of every Kidnapping version
from a Class A felony to a Class B felony. HRS § 707-720(3).
As a result, “where the criminal defense is not an
affirmative defense, the ‘defendant need only raise a reasonable
doubt as to his guilt.’” Gabrillo, 10 Haw. App. at 455, 877 P.2d
at 894 (quoting Commentary on HRS § 701-115). The burden then
falls on the prosecution to “‘prove beyond a reasonable doubt
facts negativing the defense.’” Id. (quoting Commentary on HRS §
701-115). Consequently, “‘[t]he prosecution does this when the
jury believes its case[.]’” Id. (quoting Commentary on HRS §
701-115). Therefore, to convict Petitioner of Kidnapping as a
Class A felony, the State was required to disprove the Class B
mitigating defense beyond a reasonable doubt.
Here, the jury’s response to the special
interrogatories indicated that the jury found that the State
disproved at least two of the three elements of the Class B
mitigating defense beyond a reasonable doubt, i.e., the
requirement that Petitioner released Complainant and the
requirement that Complainant was released in a safe place.
Petitioner challenges only the answer to the second special
interrogatory, that Complainant was alive and suffering from
serious or substantial bodily injury as inconsistent with the
(1994) (quoting HRS § 701-115(3)) (internal brackets and punctuation omitted).
Here, the Class B mitigating defense is not designated as an affirmative
defense and there is no statute that requires the defendant to prove the Class
B mitigating defense by a preponderance of the evidence. Hence, the Class B
mitigating defense is not an affirmative defense. Id.
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jury’s verdict convicting Petitioner of assault in the third
degree.
However, the State would need only to disprove one of
the elements of the Class B mitigating defense beyond a
reasonable doubt to establish that the defense did not apply.
State v. Kikuta, 125 Hawai#i 78, 253 P.2d 639 (2011), is
instructive in this regard. In Kikuta, this court discussed the
trial court’s refusal to give the parental discipline defense.18
125 Hawai#i at 84, 253 P.3d at 645. This court explained that
“[i]n order to invoke the parental discipline defense a defendant
18
HRS § 703-309 (1993) provides in relevant part as follows:
§ 703-309 Use of force by persons with special
responsibility for care, discipline, or safety of
others.
The use of force upon or toward the person of another is
justifiable under the following circumstances:
(1) The actor is the parent, guardian, or other person
similarly responsible for the general care and supervision
of a minor, or a person acting at the request of the parent,
guardian, or other responsible person, and:
(a) The force is employed with due regard for
the age and size of the minor and is reasonably
related to the purpose of safeguarding or
promoting the welfare of the minor, including
the prevention or punishment of the minor's
misconduct; provided that there shall be a
rebuttable presumption that the following types
of force are not justifiable for purposes of
this subsection: throwing, kicking, burning,
biting, cutting, striking with a closed fist,
shaking a minor under three years of age,
interfering with breathing, or threatening with
a deadly weapon; and
(b) The force used does not intentionally,
knowingly, recklessly, or negligently create a
risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress,
or neurological damage.
. . . .
(Emphases added.)
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is required to make a showing that the record contained some
evidence supporting [four different] elements.”19 Id.; accord
State v. Crouser, 81 Hawai#i 5, 10-11, 911 P.2d 725, 730-31
(1996). Additionally, Kikuta explained that “because the
requirements of HRS § 703–309 are set out in the conjunctive,
rather than the disjunctive, a defendant need only fail to
fulfill any one element in order to fail to sustain the defense.”
Id. at 87, 253 P.3d at 648; accord Crouser, 81 Hawai#i at 11, 911
P.2d at 731. Because some evidence existed in the record as to
all four elements, this court held that the trial court erred in
not instructing the jury as to the defense. Kikuta, 125 Hawai#i
at 94, 253 P.3d at 655.
The requirements of the Class B mitigating defense in
HRS § 707-720(3) are clearly set forth in the conjunctive, i.e.,
a defendant must voluntarily release the victim, the victim must
be alive and not suffer from serious or substantial bodily
injury, and the victim must be released in a safe place. Hence,
“a defendant need only fail to fulfill any one element in order
19
The four elements of the parental discipline defense are:
(1) [the defendant] was a parent, guardian, or other person
as described in HRS § 703–309(1); (2) [the defendant] used
force against a minor for whose care and supervision he [or
she] was responsible; (3) his [or her] use of force was with
due regard to the age and size of the recipient and
reasonably related to the purpose of safeguarding or
promoting the welfare of the minor, including the prevention
or punishment of misconduct; and (4) the force used was not
designed to cause, or known to create a risk of causing,
substantial bodily injury, disfigurement, extreme pain or
mental distress, or neurological damage.
Kikuta, 125 Hawai#i at 84, 253 P.3d at 645 (brackets in original) (quoting
State v. Miller, 105 Hawai#i 394, 401, 98 P.3d 265, 272 (App. 2004).
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to fail to sustain the defense.” Kikuta, 125 Hawai#i at 87, 253
P.3d at 648. Thus, the State was only required to disprove one
of the elements of the defense beyond a reasonable doubt to
establish that the defendant “failed to fulfill” one element and
therefore was not entitled to the defense.
The jury’s responses to the two special interrogatories
indicated that the State proved beyond a reasonable doubt that
Petitioner did not release Complainant voluntarily, and that
Petitioner did not release Complainant in a safe place. Hence,
the responses to those special interrogatories established that
the State “proved beyond a reasonable doubt facts negativing” the
first and third elements of the Class B mitigating defense. See
Gabrillo, 10 Haw. App. at 455, 877 P.2d at 894. Thus, Petitioner
was not entitled to the Class B mitigating defense here.
IX.
Based on the foregoing, the ICA’s August 21, 2013
judgment on appeal and the court’s March 19, 2012 Judgment of
Conviction and Sentence of Petitioner are affirmed, but for the
reasons stated herein.
Shawn A. Luiz, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen,
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
30