State v. Barnes ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-MAY-2022
07:56 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
RONALD MELVIN BARNES, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(FC-CRIMINAL NO. 1FC121000057)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Ronald M. Barnes (Barnes) appeals
from the February 19, 2021 Judgment of Conviction and Sentence;
Notice of Entry (Resentencing Judgment) entered by the Circuit
Court of the First Circuit (Circuit Court).1
This appeal arises from a resentencing upon remand from
a prior appeal. On March 31, 2015, a jury found Barnes guilty of
five counts of Sexual Assault in the First Degree (Sexual Assault
First) under Hawaii Revised Statutes (HRS) § 707-730(1)(b)
(2014).2 On October 26, 2015, Barnes was sentenced to 20 years
1
The Honorable Kevin A. Souza presided over the resentencing
hearing. The Honorable Karen S.S. Ahn presided over the original trial and
sentencing.
2
HRS § 707-730 states, in pertinent part:
§ 707-730 Sexual assault in the first degree.
(1) A person commits the offense of sexual assault in
the first degree if:
(continued...)
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of imprisonment for each of Counts 1, 3, 5, and 6, to run
concurrently with each other, and 20 years of imprisonment for
Count 13, to run consecutively with the other counts. The
Hawai#i Supreme Court vacated the sentence and remanded for
resentencing after it concluded that the sentencing court plainly
erred when it considered Barnes's failure to express sadness or
admit guilt at his initial sentencing. State v. Barnes, 145
Hawai#i 213, 220-22, 450 P.3d 743, 750-52 (2019) (Barnes I). On
February 19, 2021, Barnes was sentenced by a different judge to
20 years of imprisonment for Counts 1, 3, 5, and 6, to run
concurrently with each other, and 20 years of imprisonment for
Count 13, to run consecutively with the other counts. Barnes
timely filed a notice of appeal.
Barnes raises a single point of error on appeal,
contending that the Circuit Court abused its discretion in
sentencing Barnes to a consecutive term of imprisonment with
respect to Count 13, rather than all concurrent terms, i.e., a
maximum 20-year term of imprisonment.
Barnes has also filed a motion for retention of oral
argument in this case, which is hereby DENIED.
2
(...continued)
. . . .
(b) The person knowingly engages in sexual
penetration with another person who is
less than fourteen years old;
. . . .
(2) Sexual assault in the first degree is a
class A felony.
2
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Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Barnes's
point of error as follows:
Barnes argues that the Circuit Court abused its
discretion in imposing a consecutive sentence in this case
because the consecutive sentence was not warranted and the
Circuit Court's statements during sentencing showed that Barnes
was prejudiced by extraneous factors such as the state of the
alleged victims in 2021, rather than at the time of the offense.
Under HRS § 706-668.5(2) (2014),3 when determining
whether to impose multiple terms of imprisonment concurrently or
consecutively, a court "shall consider the factors set forth in
[HRS §] 706-606." When imposing consecutive terms of
imprisonment, "a court must state its reasons as to why a
consecutive sentence rather than a concurrent one was required."
Lewi v. State, 145 Hawai#i 333, 350, 452 P.3d 330, 347 (2019)
(quoting State v. Hussein, 122 Hawai#i 495, 509, 229 P.3d 313,
327 (2010)).
3
HRS § 706-668.5 states:
§ 706-668.5 Multiple sentence of imprisonment. (1)
If multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times,
or if a term of imprisonment is imposed on a defendant who
is already subject to an unexpired term of imprisonment, the
terms may run concurrently or consecutively. Multiple terms
of imprisonment run concurrently unless the court orders or
the statute mandates that the terms run consecutively.
(2) The court, in determining whether the terms
imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in
section 706-606.
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[T]he dual purposes behind the requirement that
reasons be stated for a court's imposition of a
consecutive sentence are to "(1) identify [] the facts
or circumstances within the range of statutory factors
that the court considered, and (2) confirm [] for the
defendant, the victim, the public, and the appellate
court that the decision was deliberate, rational, and
fair."
Id. (quoting State v. Kong, 131 Hawai#i 94, 102-03, 315 P.3d 720,
728-29 (2013)).
However, a sentencing court "is not required to
articulate and explain its conclusions with respect to every
factor listed in HRS § 706-606. Rather, it is presumed that a
sentencing court will have considered all factors before imposing
concurrent or consecutive terms of imprisonment under HRS § 706-
606." Id. at 350-51, 452 P.3d at 347-48 (quoting Kong, 131
Hawai#i at 102, 315 P.3d at 72) (internal footnote and quotations
omitted). Accordingly, a sentencing court "is required to
articulate its reasoning only with respect to those factors it
relies on in imposing consecutive sentences." Id.
Here, upon resentencing, the Circuit Court articulated
its consideration and application of the HRS § 706-606 factors:
With respect to the nature and circumstance of the
underlying offense and the nature and characteristics of the
defendant, the court does find that this was an egregious
breach of trust of two young children who the defendant was
essentially a stepfather to.
. . . .
These offenses were committed against young and
vulnerable victims. The court finds that the serious nature
of these offenses indicates that the defendant is indeed a
danger to the safety of the public. These factors when
considering the factors of the nature of the offense, nature
and circumstance of the underlying offense, and the nature
and characteristics of the defendant do weigh in favor of
consecutive sentencing.
. . . .
This court has reviewed the victim impact statements
that were submitted by both children. The court must say
that in reviewing the victim impact statements, they do
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describe the fear and the sadness that [Barnes's] conduct
caused them and their family and how [Barnes's] conduct has
caused them lasting trauma. And based on Madam Prosecutor's
representations to the court today, the court finds that
even as adults the victims in this case still feel the
effects of the trauma caused by [Barnes's] conduct.
The occurrence and the description of even one of the
counts here is shocking and horrifying. As Madam Prosecutor
correctly points out, the offenses are what they are, and
her description of the offenses for sentencing purposes the
court does not find to be inflammatory. The court finds
them to be merely a description of the evidence presented at
trial that the jury based its verdict on. And here we have
not just one occurrence, we have five counts, not just one.
Here we have two young vulnerable victims, not just one.
So when the court takes into account the serious
nature of these offenses as well as the need to promote
respect for the law and to provide a just punishment, the
court again finds that these factors weigh in favor of
consecutive sentencing. And the court does again reiterate
that it finds that the defendant is a danger to the public.
Finally, with respect to affording adequate deterrence
to criminal conduct and to promote protection -- and for the
protection of the public, the court finds that due to the
magnitude of the harm and lasting psychological trauma that
the defendant caused on these two victims at a young and
tender age, and noting how the sexual assault spanned a
substantial period of time, involving acts of deception to
both children and to adults, and the deep and profound
betrayal of trust by someone in a position to be a father
figure, it is this court's judgment that a just punishment
that protects the public from harm and provides an adequate
deterrence to future criminal conduct is a consecutive
sentence.
We conclude that the Circuit Court did not abuse its
discretion in imposing the term of imprisonment for one count,
which stemmed from sexual assault of a second victim under the
age of fourteen, consecutive to the four concurrent terms, which
stemmed from the four sexual assault convictions as to the first
victim. The Circuit Court explained its application of each of
the HRS § 706-606 factors that it considered. Regarding the
nature and circumstance of the underlying offense and
characteristics of the defendant, the Circuit Court found that
this was "an egregious breach of trust of two young children" and
that Barnes was "essentially [their] stepfather". The Circuit
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Court also considered the need for the sentence imposed in light
of the serious nature of these offenses as well as the need to
promote respect for the law and to provide a just punishment.
The court determined that those factors weighed in favor of
consecutive sentencing and reiterated that it found Barnes to be
a danger to the public. The Circuit Court adequately explained
the rationale for imposing consecutive sentences, and in doing so
confirmed for Barnes, the public, and this court that the
decision to impose consecutive sentences was deliberate,
rational, and fair. The Circuit Court further explained that the
consecutive sentence served as an appropriate and effective
future deterrent, as Barnes's acts constituted a crime of
opportunity that could perhaps happen again.
Barnes contends that the Circuit Court improperly
considered the "state of the alleged victims in 2021 rather than
at the time of the offense." Barnes's contention stems from the
State's argument at resentencing that the things Barnes did to
the two children were horrific and that the children were still
suffering as young adults, as a result of Barnes's acts of abuse.
The Presentencing Investigation Report (PSI) reviewed by the
resentencing judge did not include any new statements, but did
include 2015 Victim Impact Statements from both of the children,
in which they described how the abuse, which began in 2001,
continued to affect them.
Importantly, Barnes failed to object to the State's
argument or otherwise raise this issue at the time of
resentencing. "Generally, if a party does not raise an argument
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at trial, that argument is deemed waived on appeal." State v.
McDonnell, 141 Hawai#i 280, 295, 409 P.3d 684, 699 (2017) (citing
State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003));
see also Kong, 131 Hawai#i at 107, 315 P.3d at 733 (declining to
exercise plain error review where the defendant-appellant did not
challenge the PSI in the circuit court). Barnes's counsel
addressed the Circuit Court after the State made its proffer that
the children continued to suffer as young adults. Counsel did
not object to or otherwise address the State's assertion.
Instead, counsel argued that Barnes was not a "child predator,"
that he was not a danger to the community, and that concurrent
20-year sentences were appropriate.4 Barnes's argument regarding
the victims' continued suffering is waived, and we decline to
exercise plain error review of this issue. Based on the entirety
of the record, we conclude that the Circuit Court did not abuse
its discretion in sentencing Barnes to a consecutive term of
imprisonment.
For these reasons, the Circuit Court's February 19,
2021 Resentencing Judgment is affirmed.
DATED: Honolulu, Hawai#i, May 9, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Shawn A. Luiz,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Loren J. Thomas,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.
4
Barnes also addressed the Circuit Court; he reiterated his claim
of innocence, but did not otherwise address the State's proffer.
7