State v. Mersberg ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAY-2022
08:10 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
AARON K. MERSBERG, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Defendant-Appellant Aaron K. Mersberg (Mersberg)
appeals from the Judgment of Conviction and Sentence; Notice of
Entry (Judgment), entered on November 9, 2018, in the Family
Court of the First Circuit (Family Court).1/ Following a jury
trial, Mersberg was convicted of Violation of an Order of
Protection, in violation of Hawaii Revised Statutes (HRS) § 586-
11(a), and sentenced pursuant to HRS § 586-11(a)(1)(A).2/ The
1/
The Honorable Rowena A. Somerville presided.
2/
HRS § 586-11(a) (Supp. 2017) provides, in relevant part:
(a) Whenever an order for protection is granted
pursuant to this chapter, a respondent or person to be
restrained who knowingly or intentionally violates the order
for protection is guilty of a misdemeanor. . . . The court
additionally shall sentence a person convicted under this
section as follows:
(1) For a first conviction for violation of the
order for protection:
(A) That is in the nature of non-domestic
abuse, the person may be sentenced to a
jail sentence of forty-eight hours and be
fined not more than $150; provided that
the court shall not sentence a defendant
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charge stemmed from an incident in which Mersberg allegedly went
to the residence of his estranged wife and their minor children
in violation of an October 9, 2017 Order for Protection (Order
for Protection or Order), and the alleged violation was "in the
nature of non-domestic abuse."
On appeal, Mersberg contends that: (1) the Family
Court abused its discretion in failing to redact all references
to "abuse" in the copy of the Order for Protection that was
submitted to the jury; and (2) there was no substantial evidence
to support Mersberg's conviction where the Plaintiff-Appellee
State of Hawai#i (State) failed to disprove his choice-of-evils
defense beyond a reasonable doubt.3/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Mersberg's contentions as follows, vacate the Judgment, and
remand for a new trial.
(1) Prior to trial, Mersberg filed a motion in limine
and a supplemental motion in limine. Relevant to this appeal,
to pay a fine unless the defendant is or
will be able to pay the fine[.]
Mersberg was convicted as charged. The June 7, 2018 Complaint
alleged in part: "M[ersberg] is subject to sentencing in accordance with
Section 586-11(a)(1)(A) of the [HRS], where the violation of the Order for
Protection was in the nature of non-domestic abuse."
3/
The choice-of-evils defense is codified in HRS § 703-302 (2014),
which provides, in relevant part:
(1) Conduct which the actor believes to be necessary
to avoid an imminent harm or evil to the actor or to another
is justifiable provided that:
(a) The harm or evil sought to be avoided by such
conduct is greater than that sought to be
prevented by the law defining the offense
charged;
(b) Neither the Code nor other law defining the
offense provides exceptions or defenses dealing
with the specific situation involved; and
(c) A legislative purpose to exclude the
justification claimed does not otherwise plainly
appear.
The choice-of-evils defense is also referred to as the necessity defense. See
State v. Padilla, 114 Hawai#i 507, 511, 164 P.3d 765, 769 (App. 2007).
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Mersberg sought "[r]edaction of [p]rejudicial information from
[the] State's [p]roposed [e]xhibits[,]" pursuant to Hawai#i Rules
of Evidence (HRE) Rules 401 and 403.4/ Specifically, Mersberg
sought redaction of "[a]ny reference to abuse/violence in the
Order for Protection," including redaction of the following
phrases: (1) "[t]hat the above named Respondent [i.e., Mersberg]
be restrained from committing further acts of abuse or threats of
abuse"; and (2) "[a] protective order is necessary to prevent
domestic abuse or a recurrence of abuse, and is necessary for a
period of 1 year(s), which is a reasonable amount of time."
During the November 7, 2018 hearing on Mersberg's
motions, the State argued that the language at issue was "not
substantially prejudicial considering the probative value[,]"
which the State described as "the violation of the protective
order and the defendant's state of mind, the gravity of the order
for protection, which would go to the defendant's state of mind
on how carefully he paid attention and the seriousness of the
order." The State also argued that "[t]he jury should be able to
consider the document in its entirety, not piecemeal." Mersberg
disagreed. As to the first phrase quoted above, Mersberg argued
that the language was "substantially prejudicial" and "clearly
implies that there is abuse." The court concluded that the word
"further" was more prejudicial than probative, but also took into
account the State's completeness argument in ruling: "I will
just take out that word 'further' and leave the rest in." As to
the second phrase quoted above, the court ruled that the words
"or a recurrence of abuse" would be redacted. Mersberg
"strong[ly] object[ed,]" arguing "that the language implies that
there is ongoing abuse and . . . is substantially prejudicial."
4/
HRE Rule 401 defines "[r]elevant evidence" as "evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence."
HRE Rule 403 states: "Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."
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On appeal, Mersberg contends that the Family Court
abused its discretion in failing to redact the two references to
"abuse" that remained in the copy of the Order for Protection
that was submitted to the jury. First, Mersberg argues that the
references to "abuse" in the Order were not relevant evidence
pursuant to HRE Rule 401, and that the only relevant content of
the order was the provision that "prohibited [Mersberg] from
coming or passing within 100 yards of any residence or place of
employment or school of the minor children." Second, Mersberg
argues that, pursuant to HRE Rule 403, "[e]ven if the references
to 'abuse' were somehow relevant, any minimal and tangential
relevance was substantially outweighed by the danger of unfair
prejudice."
We find the latter argument dispositive. Under HRE
Rule 403, even relevant evidence "may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice." "This balance is predicated upon an
assessment of 'the need for the evidence, the efficacy of
alternative proof, and the degree to which the evidence will
probably rouse the jury to overmastering hostility.'" State v.
Uyesugi, 100 Hawai#i 442, 463, 60 P.3d 843, 864 (2002) (quoting
State v. Bates, 84 Hawai#i 211, 228, 933 P.2d 48, 65 (1997)). We
review evidentiary decisions based on HRE Rule 403, which require
a "judgment call" on the part of the trial court, for an abuse of
discretion. State v. Richie, 88 Hawai#i 19, 37, 960 P.2d 1227,
1245 (1998).
Here, Mersberg was charged with Violation of an Order
for Protection, which occurs when "a respondent or person to be
restrained [] knowingly or intentionally violates the order for
protection[.]" HRS § 586-11(a). Additionally, the charge
specified that "violation of the Order for Protection was in the
nature of non-domestic abuse." At trial, the State argued to the
jury that Mersberg violated the provision of the Order that
prohibited him from coming or passing within 100 yards of any
residence or place of employment or school of the minor children.
In opposing Mersberg's motion in limine, the State argued to the
court that the provisions of the Order that referenced abuse were
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relevant to Mersberg's state of mind, but that argument was not
made to the jury. Similarly, on appeal, the State contends that
the references to abuse were not prejudicial, but does not
explain how they were relevant to Mersberg's state of mind or any
other issue at trial.
To the extent that the "abuse" language in the Order
had any relevance to Mersberg's state of mind and "how carefully
he paid attention [to,] and the seriousness of[,] the [O]rder,"
other non-prejudicial evidence was available to prove the same
point. See Walsh v. Chan, 80 Hawai#i 212, 217, 908 P.2d 1198,
1203 (1995) (explaining that "the availability and quality of
other evidence tending to prove the same point" is one factor in
determining probative value) (quoting A. Bowman, Hawaii Rules of
Evidence Manual § 403-2A at 81 (1990)). For example, the
"Certification" provision of the Order stated:
The terms and conditions of this Order were explained by the
Court to the parties in open court. The parties
acknowledged that they understood the terms and conditions
of the Order and the possible criminal sanctions for
violating it.
Likewise, the Order stated:
ANY VIOLATION OF THIS PROTECTIVE ORDER IS A
MISDEMEANOR, WHICH IS PUNISHABLE BY IMPRISONMENT UP TO ONE
YEAR AND/OR A FINE OF UP TO $1,000 PURSUANT TO H.R.S. § 586-
11.
Thus, to the extent that the references to abuse had any
probative value, the value was low, because the alleged violation
did not require proof of the reasons for entry of the Order, and
there was other non-prejudicial evidence tending to prove the
point that the State sought to prove with the abuse language.
On the other hand, the possible inference that Mersberg
had committed domestic abuse had a potential to "rouse the jury
to overmastering hostility" toward him. See State v. Lavoie, 145
Hawai#i 409, 426, 453 P.3d 229, 246 (2019) ("[G]iven the
justifiable stigma attached to domestic abusers in the eyes of
the public, evidence that Lavoie had committed domestic abuse was
highly likely to 'rouse the jury to overmastering hostility'
towards him." (quoting State v. Renon, 73 Haw. 23, 38, 828 P.2d
1266, 1273 (1992))); see also State v. Feliciano, 149 Hawai#i
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365, 377, 489 P.3d 1277, 1289 (2021) ("Here, even if the chair
incident evidence had any probative value, its probative value
was substantially outweighed by its potential for unfair
prejudice. The jury could have inferred that Feliciano had
physically abused the [complaining witness] in the past by
pushing her out of a chair and acted in the same manner when he
struck the [complaining witness] in the face in the charged
offense."). And although the State did not emphasize the abuse
language to the jury, the State's closing argument did urge the
jury to "read through the protective order."
Thus, even assuming that the references to abuse in the
Order had some marginal probative value, these references should
have been excluded via redaction under HRE Rule 403, because
their value was substantially outweighed by the danger of unfair
prejudice. Accordingly, we conclude that the Family Court abused
its discretion in failing to redact the references to "abuse" in
the Order for Protection.
"When such an abuse of discretion is identified, it is
grounds to vacate a conviction unless it is harmless beyond a
reasonable doubt." State v. Gallagher, 146 Hawai#i 462, 470, 463
P.3d 1119, 1127 (2020) (citing State v. Kazanas, 138 Hawai#i 23,
43, 375 P.3d 1261, 1281 (2016)). "In applying the harmless
beyond a reasonable doubt standard[,] the court is required to
examine the record and determine whether there is a reasonable
possibility that the error complained of might have contributed
to the conviction." Id. at 481, 463 P.3d at 1138 (quoting State
v. Mundon, 121 Hawai#i 339, 368, 219 P.3d 1126, 1155 (2009)).
Here, Mersberg did not deny passing within 100 yards of
the minor children's residence, but raised a choice-of-evils
defense based on his asserted belief that his conduct was
necessary to avoid an imminent harm to his son, JM. Mersberg's
credibility was central to this defense. See State v. Duncan,
101 Hawai#i 269, 278, 67 P.3d 768, 777 (2003) (finding a
reasonable possibility that an erroneous admission of testimony
impeaching a defendant's credibility contributed to the
defendant's conviction where his "credibility was the linchpin of
his defenses of duress and choice of evils."); see also Lavoie,
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145 Hawai#i at 428, 453 P.3d 229 at 248 ("On this evidentiary
record, there is a clear possibility that any impermissible
inferences that the jury made from the wrongfully admitted prior
instances of abuse colored their evaluation of [the defendant's]
defenses of lack of penal responsibility and EMED.").
On this record, there is a reasonable possibility that
the Family Court's error might have contributed to Mersberg's
conviction. We thus conclude that the error was not harmless
beyond a reasonable doubt and Mersberg's conviction must be
vacated.
(2) Mersberg also contends that there was no
substantial evidence to support his conviction, because the State
failed to prove beyond a reasonable doubt that his violation of
the Order for Protection was not legally justified by the choice-
of-evils defense.
We review the sufficiency of evidence to support a
conviction as follows:
[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution . . . ; 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. Williams, 146 Hawai#i 62, 76, 456 P.3d 135, 149 (2020)
(quoting State v. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241
(1998)). "Substantial evidence . . . is credible evidence which
is of sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion. Under such a
review, we give full play to the right of the fact finder to
determine credibility, weigh the evidence, and draw justifiable
inferences of fact." State v. Bowman, 137 Hawai#i 398, 405, 375
P.3d 177, 184 (2016) (quoting State v. Grace, 107 Hawai#i 133,
139, 111 P.3d 28, 34 (App. 2005)).
As to Mersberg's choice-of-evils defense, the burden
was on the State "to disprove the justification evidence that was
adduced or to prove facts negativing the justification defense,
and to do so beyond a reasonable doubt." State v. Stice, No.
28709, 2008 WL 4120057, at *3 (Haw. App. Sept. 5, 2008) (Mem.
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Op.) (quoting State v. Kaimimoku, 9 Haw. App. 345, 350, 841 P.2d
1076, 1079 (1992)). The State satisfies this burden "when the
trier of fact believes the prosecution's case and disbelieves the
defense." State v. Jhun, 83 Hawai#i 472, 483, 927 P.2d 1355,
1366 (1996). For the choice-of-evils defense to apply, the
defendant must reasonably believe their conduct is "necessary to
avoid an imminent harm or evil[.]" HRS § 703-302; see State v.
Friedman, 93 Hawai#i 63, 71, 996 P.2d 268, 276 (2000); see also
State v. Kauhane, 145 Hawai#i 362, 371, 452 P.3d 359, 374 (2019)
("[A]lthough [the defendant's] belief had to be objectively
reasonable, it was also necessary that [the defendant], in fact,
subjectively held such a belief.").
Here, the evidence at trial bearing on Mersberg's
choice-of-evils defense included the following. The incident at
issue occurred on the night of June 1, 2018, and into the early
morning hours of June 2, 2018. Mersberg and his estranged wife,
the complaining witness (CW), had been living separately. CW had
physical custody of their three adopted children, ages fifteen,
eleven, and eight at the time of trial, while Mersberg and CW
shared legal custody and Mersberg had visitation rights. On
June 1, 2018, CW picked up the three children from visitation
with Mersberg. Mersberg testified that after CW and the children
returned home, JM, aged eleven, called Mersberg and said, "dad, I
need your help"; he sounded "[p]retty distraught." JM then
"started telling [Mersberg] that he was locked out of the house
again and things like that." Mersberg's initial response was
that JM was "overreacting" and "trying to get attention." "But
then from the background [CW] started yelling, you need to come
get him, come get him now, I'm not letting him back in, that's
it, I'm done."
CW, on the other hand, testified that on the night of
the incident, following an argument with his brother, JM started
crying, wanted to call his father, went into CW's van and got her
phone, and then called Mersberg. CW did not lock JM out of the
house. CW explained: "[U]sually the routine is . . . [this] was
just . . . something that they do. . . . I told [Mersberg] that
this was stuff that they normally do. It's just attention
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getting, or attention seeking type of behavior." At some point
after midnight, CW overheard another phone conversation between
JM and Mersberg after JM had again called Mersberg. The phone
was on speaker, and CW told Mersberg "not [to] come, because
there's nothing going on. Um -- this is -- again, to remind him
about the TRO, that, um -- he shouldn't be here at the house."
On cross-examination, Mersberg further testified: On
the night of the incident, he first received a call from JM at
around 11:19 p.m. Mersberg was in town at that time, and it
takes "about 25 to 30 minutes" to get from his residence to the
area of CW's residence. Mersberg did not leave Honolulu or
Kaka#ako "until about probably a little after 1:00." Mersberg
explained: "[T]owards the end of the first part of the
conversation [JM] became emotional because I was trying to tell
him that I needed to make alternate arrangements for some other
things and that I needed to take care of that before I could head
over . . . ." JM hung up. "So then it was another call, then he
came back on and I was able to talk him through and have him calm
down long enough that I could get through that conversation and
then let him know that I was on my way." Mersberg also testified
on direct examination that he "kept thinking at some point I'd
get close enough and then I'd get, he's calm, everything's good
. . . ."
On this record, we conclude there was substantial
evidence from which the jury could reasonably have inferred that
there was no threat of imminent harm to JM, and that even if
Mersberg subjectively believed that his conduct was necessary to
avoid such harm, that belief was not reasonable under the
circumstances. See Friedman, 93 Hawai#i at 71, 996 P.2d at 276(concluding that "because there was no threat of imminent harm,
the trial court did not err in refusing to consider the choice of
evils defense"). For example, the jury could have found CW's
version of events, including her testimony that she told Mersberg
"not [to] come, because there's nothing going on," credible and
Mersberg's version of events not credible. Or the jury could
have concluded, based on Mersberg's own testimony regarding his
delay in leaving town, that no immediacy existed and he did not
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reasonably believe that his conduct was necessary to avoid
imminent harm to JM. We decline to pass upon issues regarding
the credibility of witnesses and the weight of the evidence,
which are within the province of the trier of fact – here, the
jury. See State v. Stocker, 90 Hawai#i 85, 90, 976 P.2d 399, 404
(1999); see also Jhun, 83 Hawai#i at 483, 927 P.2d at 1366 (the
State disproves a justification defense "when the trier of fact
believes the prosecution's case and disbelieves the defense").
Viewing the evidence adduced at trial in the strongest light for
the State, we conclude there was substantial evidence to negate
Mersberg's choice-of-evils defense.
Accordingly, on this record, the evidence was
sufficient to support Mersberg's conviction.
For the reasons discussed above, we vacate the Judgment
of Conviction and Sentence, entered on November 9, 2018, in the
Family Court of the First Circuit, and remand the case for a new
trial and for further proceedings consistent with this Summary
Disposition Order.
DATED: Honolulu, Hawai#i, May 31, 2022.
On the briefs:
/s/ Katherine G. Leonard
Jon N. Ikenaga, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
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