State v. Benedicto ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-OCT-2022
07:44 AM
Dkt. 69 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
RYAN BENEDICTO, also known as Ryan James Benedicto,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
Defendant-Appellant Ryan Benedicto, also known as Ryan
James Benedicto (Benedicto), appeals from the January 28, 2020
Judgment of Conviction and Probation Sentence; Notice of Entry
(Judgment), entered in the Circuit Court of the First Circuit
(Circuit Court).1/ Following a jury trial, Benedicto was
convicted of: (1) Forgery in the Second Degree (Forgery Two), in
violation of Hawaii Revised Statutes (HRS) § 708-852 (2014);2/ and
1/
The Honorable Todd W. Eddins presided.
2/
At the time of the alleged offense, HRS § 708-852 provided, in
relevant part:
(1) A person commits the offense of forgery in the
second degree if, with intent to defraud, the person falsely
makes, completes, endorses, or alters a written instrument,
or utters a forged instrument, or fraudulently encodes the
magnetic ink character recognition numbers, which is or
purports to be, or which is calculated to become or to
represent if completed, a deed, will, codicil, contract,
assignment, commercial instrument, or other instrument which
does or may evidence, create, transfer, terminate, or
otherwise affect a legal right, interest, obligation, or
status.
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(2) Attempted Theft in the Second Degree (Attempted Theft Two),
in violation of HRS §§ 705-500 (2014)3/ and 708-831(1)(b) (Supp.
2019).4/
On appeal, Benedicto contends that: (1) the deputy
prosecuting attorney (DPA) committed prosecutorial misconduct by
adducing evidence at trial of Benedicto's prior conviction and
prison sentence; (2) the Circuit Court erred in denying
Benedicto's motion for a mistrial; and (3) the evidence was
insufficient to support the convictions for Forgery Two and
Attempted Theft Two.
3/
HRS § 705-500 states, in relevant part:
(1) A person is guilty of an attempt to commit a crime
if the person:
. . . .
(b) Intentionally engages in conduct which, under
the circumstances as the person believes them to
be, constitutes a substantial step in a course
of conduct intended to culminate in the person's
commission of the crime.
. . . .
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of
the defendant's criminal intent.
4/
At the time of the alleged offense, HRS § 708-831(1)(b) provided:
(1) A person commits the offense of theft in the
second degree if the person commits theft:
. . .
(b) Of property or services the value of which
exceeds $750[.]
HRS §708-830 (2014) states, in relevant part:
A person commits theft if the person does any of the
following:
(1) Obtains or exerts unauthorized control over
property. A person obtains or exerts
unauthorized control over the property of
another with intent to deprive the other of the
property.
(2) Property obtained or control exerted through
deception. A person obtains, or exerts control
over, the property of another by deception with
intent to deprive the other of the property.
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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
Benedicto's contentions as follows and affirm.
(1) Benedicto contends that the DPA committed
misconduct by adducing evidence at trial that Benedicto "went to
prison for a domestic matter[,]" after the State indicated during
a motion-in-limine hearing that it would not elicit such
evidence.
"The term 'prosecutorial misconduct' is a legal term of
art that refers to any improper action committed by a prosecutor,
however harmless or unintentional." State v. Maluia, 107 Hawai#i
20, 25, 108 P.3d 974, 979 (2005). "Allegations of prosecutorial
misconduct are reviewed under the harmless beyond a reasonable
doubt standard." State v. Riveira, 149 Hawai#i 427, 431, 494
P.3d 1160, 1164 (2021) (citing State v. Klinge, 92 Hawai#i 577,
584, 994 P.2d 509, 516 (2000)). "[A] reviewing court will vacate
a conviction if there is a reasonable possibility that the
conduct might have affected the trial's outcome." Id. (citing
State v. Senteno, 69 Haw. 363, 366, 742 P.2d 369, 372 (1987)).
"Factors considered are: (1) the nature of the conduct; (2) the
promptness of a curative instruction; and (3) the strength or
weakness of the evidence against the defendant." State v.
Maluia, 107 Hawai#i 20, 24, 108 P.3d 974, 978 (2005) (quoting
State v. Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6
(1998)).
Here, Benedicto testified at trial. During the DPA's
cross-examination, the following exchange occurred:
Q [by DPA]. Let's talk about what you did before the
accident. So you said you were at Kalaeloa Airport?
A. I was a -- a fuel man, you could say.
Q. Fuel man?
A. I fueled aircrafts, helicoptors, airplanes.
Q. Okay. How did you -- how did you end up getting
into that?
A. My friend, we both danced hula at the age of 11
and ten, we used to dance hula at Hale Koa Hotel. He was a
good friend and he owned the airport. And when I got
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released in 2011 from another charge, he hired me for the
airport.
Q. Okay. When you say released, that means out of
prison?
A. Yes, it was domestic kind of stuff.
THE COURT: All right. The jury is going to disregard
that. The jury is not to consider anything relating to any
prior criminality purportedly committed by Mr. Benedicto.
It has nothing to do with the particular case, you are to
disregard that.
(Emphases added.)
Benedicto contends that his testimony related to the
domestic matter was adduced contrary to the DPA's statement at a
motion-in-limine hearing. Prior to trial, on November 14, 2019,
Benedicto filed a motion in limine seeking to exclude three
categories of evidence at trial, including "[t]estimonial or
documentary evidence relating to [Benedicto's] criminal arrest
and/or conviction record and any other 'bad acts[.]'" On appeal,
the State concedes that during a November 15, 2019 hearing on the
motion, "the State indicated that it had no intention to elicit
that type of information [relating to other criminal acts] during
trial."5/ It does not appear that the Circuit Court ruled on this
aspect of Benedicto's motion.
We apply the three factors identified above to the
trial record to determine whether the asserted prosecutorial
misconduct "rises to the level of reversible error." State v.
Austin, 143 Hawai#i 18, 40, 422 P.3d 18, 40 (2018).
The first factor requires consideration of the nature
of the misconduct. Here, the DPA's question – "When you say
released, that means out of prison?" – essentially required
5/
Benedicto's motion in limine sought to exclude three categories of
evidence, labeled (a), (b), and (c). The (a) category comprised evidence
"relating to [Benedicto's] criminal arrest and/or conviction record and any
other 'bad acts[.]'" During the November 15, 2019 hearing, the Circuit Court
referred to this category of evidence as "the (a) matter" in the following
exchange:
THE COURT: Okay. You know, as far as the 404(b) in
the (a) matter, Mr. [DPA], is there 404(b) types of matters
that you were intending to elicit in the trial?
[DPA]: Not –- no, Your Honor, aside from the (b) and
(c) [categories] that's addressed in defense's motion in
limine, which I believe is part of the elements.
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Benedicto to confirm or deny that he had served prison time. The
question was thus contrary to the State's acknowledgment during
the motion-in-limine hearing that it did not intend to elicit
"404(b) types of matters." Under these circumstances, the
question was improper. See Maluia, 107 Hawai#i at 25, 108 P.3d
at 979. However, the Circuit Court immediately gave a curative
instruction and the State made no other reference to Benedicto's
prior criminal conviction or sentence, i.e., there was no
repeated misconduct. Cf. State v. Pasene, 144 Hawai#i 339, 371,
439 P.3d 864, 896 (2019) (vacating and remanding where the
prosecution repeatedly referred to evidence that had been
excluded by the court, and the court's efforts to eliminate the
cumulative prejudicial effect of the misconduct were
insufficient). Moreover, the DPA did not elicit testimony
regarding the nature of Benedicto's prior conviction. As the
Circuit Court recognized in denying Benedicto's subsequent motion
for a mistrial (see infra), "this [prior] matter was injected by
Mr. Benedicto."6/ Thus, while the DPA's question was improper, in
these circumstances the misconduct was not egregious. See
Maluia, 107 Hawai#i at 27, 108 P.3d at 981 (although asking the
defendant to comment on the veracity of other witnesses was
improper, "the conduct was less egregious than that presented in
those cases where we vacated the defendants' convictions and
remanded for new trials.").
Having concluded that the DPA's question was improper,
we examine the second factor regarding "the promptness or lack of
a curative instruction." See Austin, 143 Hawai#i at 40, 422 P.3d
at 40. Here, the Circuit Court promptly gave a curative
instruction to the jury, which was specifically told to disregard
"anything relating to any prior criminality purportedly committed
by Mr. Benedicto[,]" because "[i]t has nothing to do with the
particular case . . . ." The jury is presumed to have complied
with the Circuit Court's instruction. See State v. Underwood,
6/
During the hearing on the motion for mistrial, the DPA explained
that he did not expect Benedicto to testify that he "got released in 2011 from
another charge" when the DPA asked about the Kalaeloa Airport job. The DPA
further stated, "I didn't intend on any other questions, but just to clarify
what 'get out' meant."
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142 Hawai#i 317, 327, 418 P.3d 658, 668 (2018) (when a trial
court promptly addresses the impropriety, the improper remarks
are generally considered cured by the court's instruction to the
jury because "it is presumed that the jury abided by the court's
admonition to disregard the statement." (quoting State v. Rogan,
91 Hawai#i 405, 415, 984 P.2d 1231, 1241 (1999))).
The third factor requires that we consider the strength
or weakness of the evidence against the defendant. See Austin,
143 Hawai#i at 40, 422 P.3d at 40. The evidence against
Benedicto in support of the Forgery Two and Attempted Theft Two
charges was strong. Specifically, the evidence presented at
trial included the following:
• Two Bank of Hawaii (BOH) employees, Troy Chong (Chong)
and Christopher Buto (Buto), testified that on
March 30, 2019, Benedicto presented and attempted to
cash a $1,436.21 payroll check, which they later
determined to be fraudulent, at the BOH branch located
in the Kapahulu Safeway. The name of the payor was
"Moana Enterprise Inc" and the name of the payee was
Benedicto.
• Chong informed Benedicto that there was a $500 check
cashing limit for noncustomers and gave him the option
of opening an account. Benedicto agreed, telling Chong
that he was "like an engineer for a construction
company." When Chong proceeded to verify the check, he
noticed that the signature on the check was "very off"
from the signature on file, and the nature of the
business, Moana Enterprise, was massage therapy, which
was inconsistent with Benedicto's reported occupation
as an engineer for a construction company. Chong
related these discrepancies to his branch manager,
Buto.
• Buto testified that the check was not consistent with
the stock of checks issued for the Moana Enterprise
account, was not in sequence with check numbers used,
and was not consistent with the signature card on file.
When Buto interacted with Benedicto, Benedicto appeared
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"agitated." After Buto informed Benedicto that the
check appeared fraudulent, Benedicto first argued that
the check was good and then "fled" (or "[j]ust left")
the bank, leaving behind the check and his
identification. When Moana Zhang (Zhang), the owner of
Moana Enterprise, was shown the check at trial, she
testified that she did not recognize it, and the
signature on the check was not hers.
• Another BOH employee, Anastasia Kikiloi (Kikiloi),
testified that on April 9, 2019, Benedicto entered the
BOH Keeaumoku branch and attempted to activate a debit
card he had received in the mail. He showed Kikiloi a
blurry picture of his identification on his phone, and
she could not locate the account. After researching
the matter, Kikiloi's supervisor, branch manager
Jensine Manuel (Manuel), noticed there was no account
and that Benedicto had initially tried to open an
account at the BOH branch in the Kapahulu Safeway.
Manuel contacted Buto, who explained that they
suspected fraudulent activity. Manuel then contacted
Zhang, who confirmed the check was fraudulent and that
she had closed her account. Benedicto tried to "rush"
Manuel and Kikiloi, saying he needed to leave to pick
up his kids, which was "kind of a red flag." Manuel
called the police, and Benedicto was arrested.
• Benedicto testified that from 2014 to 2018, while
"waiting for disability" due to an injury, he worked
"on the side" in game rooms. In 2018, a game room
"high roller" named AJ hired Benedicto to haul items to
the dump. AJ would pay him $50 a load in cash "under
the table." According to Benedicto, AJ said he wanted
to put Benedicto "on payroll for tax purposes," and
Benedicto received his first payroll check on March 30,
2019.7/ Benedicto testified that after knowing AJ for
four years and working for him for several months,
7/
The check Benedicto presented was dated March 15, 2019.
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Benedicto did not know AJ's last name and did not know
the name of his business. After the bank refused to
cash the check, Benedicto went back to AJ, who paid
Benedicto in cash and said that he would "take care of
it." No other witness corroborated Benedicto's
testimony.
In short, there was strong evidence to support the
jury's verdict that Benedicto committed Forgery Two and Attempted
Theft One, the elements of which are further discussed below.
Evaluating the three relevant factors, and considering
the record as a whole, we conclude there is no reasonable
possibility that Benedicto's testimony that he had been released
from prison for "domestic kind of stuff" may have contributed to
his convictions. Accordingly, we hold that the asserted
prosecutorial misconduct was harmless beyond a reasonable doubt.
(2) Benedicto next contends that the Circuit Court
erred in denying his motion for a mistrial, which was based on
the same alleged misconduct, i.e., the DPA having adduced
evidence at trial of Benedicto's prior criminal record.
Benedicto argues that the misconduct "cast [him] as a man of bad
character," which deprived him of his right to a fair trial.
"The denial of a motion for mistrial is within the
sound discretion of the trial court and will not be upset absent
a clear abuse of discretion." State v. Deguair, 139 Hawai#i 117,
125, 348 P.3d 893, 901 (2016) (citing State v. Loa, 83 Hawai#i
335, 349, 926 P.2d 1258, 1272 (1996)). "The trial court abuses
its discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant." Id. (citing State v.
Ganal, 81 Hawai#i 358, 373, 917 P.2d 370, 385 (1996)).
As a general rule, it is within the discretion of the
trial court to determine whether the injection of irrelevant
references to prior arrests, convictions, or imprisonment
warrants "a mere prophylactic cautionary instruction or the
radical surgery of declaring a mistrial." Loa, 83 Hawai#i at
353, 926 P.2d at 1276 (quoting State v. Kahinu, 53 Haw. 536, 549,
498 P.2d 635, 644 (1972)). "The reception of evidence pertaining
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to prior convictions or imprisonment may, under the circumstances
of a particular case, be harmless beyond a reasonable doubt
. . . ." Id. (brackets and original ellipsis omitted) (quoting
Kahinu, 53 Haw. at 549, 498 P.2d at 644).
Here, in denying Benedicto's motion for a mistrial, the
Circuit Court explained:
Well, this matter was injected by Mr. Benedicto. . . .
[T]his initial comment by Mr. Benedicto wasn't prompted by
anything except his own, let's say, candor. . . .
After [the DPA] followed up with a question, I
basically came in and gave a curative instruction and
requested that the jury disregard any matter with respect to
Mr. Benedicto being in prison for a domestic violence
offense. . . . I expect the jury will follow that
instruction, they will not consider that in any way in
deciding whether the elements or not have been proved.
I don't see it as insurmountable to the defense at
all, I see any possible prejudice cured by the instruction.
The motion is denied.
For the reasons discussed above, we have concluded that
in the circumstances of this case, the asserted prosecutorial
misconduct was harmless beyond a reasonable doubt. Accordingly,
we further conclude that the Circuit Court, having given an
immediate curative instruction to the jury, did not abuse its
discretion in denying Benedicto's motion for a mistrial based on
that misconduct.
(3) Benedicto also contends that there was no
substantial evidence to support his convictions "where the
credible evidence established that he did not act with the
requisite intent to commit [Forgery Two] and [Attempted Theft
Two]."
We review the sufficiency of the 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
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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)).
In order to convict Benedicto of Forgery Two, the State
was required to prove beyond a reasonable doubt that (1)
Benedicto (2) with intent to defraud (3) falsely made, completed,
endorsed, or altered a written instrument, or uttered8/ a forged
instrument which was or purported to be, or which was calculated
to become or to represent if completed, a commercial instrument
or other instrument which did or might evidence, create,
transfer, terminate, or otherwise affect a legal right, interest,
obligation, or status. See HRS § 708-852(1). "Intent to
defraud" means: "(1) [a]n intent to use deception to injure
another's interest which has value; or (2) [k]nowledge by the
defendant that the defendant is facilitating an injury to
another's interest which has value." HRS § 708-800 (2014).
In order to convict Benedicto of Attempted Theft Two,
the State was required to prove beyond a reasonable doubt that
(1) Benedicto (2) intentionally (3) engaged in conduct which,
under the circumstances as he believed them to be, was a
substantial step in a course of conduct intended by Benedicto to
culminate in his commission of Theft Two, i.e., the theft of
property or services exceeding the value of $750. See HRS
§§ 705-500, 708-831(1)(b). "A person acts intentionally with
respect to his conduct when it is his conscious object to engage
in such conduct." HRS § 702-206(1)(a) (2014).
Here, Benedicto disputes the sufficiency of the
evidence supporting the jury's conclusion that he acted with the
requisite intent to commit the charged offenses.
8/
"'Utter,' in relation to a forged instrument, means to offer,
whether accepted or not, a forged instrument with representation by acts or
words, oral or in writing, that the instrument is genuine." HRS § 708-850.
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We have consistently held that since intent can rarely be
proved by direct evidence, proof of circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
act is sufficient to establish the requisite intent. Thus, the
mind of an alleged offender may be read from his acts, conduct,
and inferences fairly drawn from all of the circumstances.
State v. Calaycay, 145 Hawai#i 186, 200, 449 P.3d 1184, 1198
(2019) (quoting State v. Kiese, 126 Hawai#i 494, 502-03, 273 P.3d
1180, 1188-89 (2012)).
We conclude that substantial evidence supports the
state-of-mind requirements for Forgery Two and Attempted Theft
Two. In finding Benedicto guilty of Forgery Two, the jury could
reasonably have inferred his intent to defraud from the following
circumstances surrounding Benedicto's presentment of the check to
BOH employees, as supported by the check itself and the witness
testimony: (1) BOH employees determined that the check was
fraudulent; (2) Benedicto said he worked for a construction
company, but the check was drawn on the account of a massage
therapy business; (3) Benedicto told Chong that he was an
engineer, but he testified at trial that he hauled rubbish for a
game room "high roller"; (4) Benedicto testified that after
knowing AJ for four years and working for him for several months,
Benedicto did not know AJ's last name and did not know the name
of his business; (5) after Buto told Benedicto that the check
appeared to be fraudulent, Benedicto "fled" the bank, leaving his
identification; (6) Benedicto was then paid in cash by AJ, but
returned to another BOH branch ten days later to activate a debit
card, presumably to gain access to any funds in the linked
account; (7) Benedicto tried to "rush" Manuel and Kikiloi, saying
he needed to leave to pick up his kids, which was "kind of a red
flag." In finding Benedicto guilty of Attempted Theft Two, the
jury could reasonably have inferred he acted with the requisite
intent to commit that offense based on the evidence of events at
the BOH branch in the Kapahulu Safeway, including that Benedicto
attempted to cash a check in the amount of $1,436.21.
To the extent that Benedicto challenges the credibility
of the bank witnesses, "[i]t is well-settled that an appellate
court will not pass upon issues dependent upon the credibility of
witnesses and the weight of the evidence; this is the province of
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the trier of fact." State v. Pomroy, 132 Hawai#i 85, 95, 319
P.3d 1093, 1103 (2014). Viewing the evidence in the strongest
light for the prosecution, we conclude that substantial evidence
supports the reasonable inference that Benedicto acted with the
required states of mind to commit Forgery Two and Attempted Theft
Two. Thus, the evidence was sufficient to support Benedicto's
convictions.
For these reasons, the January 28, 2020 Judgment of
Conviction and Probation Sentence; Notice of Entry, entered in
the Circuit Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, October 14, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Harrison L. Kiehm Chief Judge
for Defendant-Appellant.
Sonja P. McCullen, /s/ Katherine G. Leonard
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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