State v. Halemanu , 3 Haw. App. 300 ( 1982 )

OPINION OF THE COURT BY

BURNS, C.J.

Defendant-Appellant Cornwell H. S. Halemanu (Halemanu) appeals the jury’s verdict finding him guilty of robbery in the first degree and kidnapping.

Halemanu contends:

I. That the lower court erred in denying his Rule 29, Hawaii Rules of Penal Procedure (1977) (HRPP), motion for judgment of acquittal made at the close of the State’s evidence.

II. That the lower court erred in denying his Rule 29, HRPP, motion for judgment of acquittal made at the close of all the evidence.

III. That Count II of the indictment failed to state an offense and therefore .must be dismissed.

We affirm.

At the trial in September 1980, seventeen-year-old Garrett Arashiro testified:

On January 28, 1980, he was in his car (a 1974 Pontiac Ventura with a “souped up engine”) on Mott-Smith Drive waiting for the light to permit him to enter Nehoa Street. Halemanu leaned into the window of Arashiro’s car from the passenger side and asked for a [cigarette] light. Arashiro handed him the car lighter and Halemanu lit his cigarette. Then, Halemanu reached in, unlocked the door, and got in. When Arashiro questioned Halemanu as to what he was doing, Halemanu told Arashiro “never mind” and asked him if he had any “dope.” Arashiro answered no. Halemanu then told Arashiro to drive and started looking through the car’s glove compartment. On Nehoa Street, Arashiro stopped the car. Halemanu again asked if he had any “dope.” Arashiro again answered no. Halemanu kept searching through the glove compartment. Arashiro asked him to leave, but was told that Halemanu would tell him where to drive and that he was to drive where Halemanu told him to. Because of Halemanu’s appearance, actions, and tone of voice, Arashiro was scared. Arashiro drove into Manoa into a parking lot where Halemanu told him to park. Halemanu continued to search through the glove compartment, questioning Arashiro about its contents. Arashiro noticed that Halemanu had a folding razor in his left hand which was on his leg. Arashiro did not testify whether it was unfolded or folded. Halemanu asked Arashiro to give him his wristwatch, and Arashiro gave it to him. Halemanu exited the car and told Arashiro to get out also. Halemanu opened the trunk and searched through it and its contents. He asked Arashiro if it contained any “dope,” and Arashiro answered no. Halemanu got back into the car but this time in the driver’s seat and told Arashiro to get in, which he did. Halemanu found a pair of glasses on the car’s visor and put them on. Halemanu asked Arashiro if he saw Halemanu’s “blade” and began searching for it but found it in his pocket. Halemanu began driving in a hotrod fashion and left Manoa. While on Punahou Street, Halemanu told Arashiro not to try anything, not to wave to anyone or to try to get anyone’s attention. From Nehoa Street, he drove up Tantalus Drive, fishtailing and driving fast. They came down Tantalus Drive through Papakolea, and at that point Halemanu asked Arashiro if he had any money and Arashiro answered no. Halemanu drove toward Liliha, by Chun Hoon Super Market, and when Arashiro saw some of his friends, Halemanu told him not to try anything and not to get their attention. Halemanu then entered onto the freeway heading in the Ewa (south) direction. When they passed Halawa, Arashiro noticed the speedometer read 105 miles per hour. Later, as Halemanu headed for Waianae, Arashiro noticed that the speedometer then read about 120 miles per hour. When Arashiro informed Halemanu that the car did not have enough fuel to make it to Waianae and back, Halemanu crossed the grassy medial strip and headed back towards Honolulu at a high rate of speed. He entered Sand Island, parked the car, and reopened the trunk. He pulled out a can of carburetor cleaner and a rag, sprayed the cleaner on the rag, and sniffed it. Then he instructed Arashiro not to try “anything funny” and to drive him back to Anianiku Street in Papakolea. Upon reaching Anianiku Street, Arashiro stopped the car and turned off the engine. A couple of Arashiro’s. friends saw him, suspected something was wrong, and came to his aid. After Arashiro told them what happened, they retrieved Arashiro’s watch from Halemanu and sent him on his way.

Halemanu, 21 years old, testified and admitted that Arashiro did not give him permission to enter the car or to drive; that Arashiro told him to leave but that he did not because “[h]e didn’t come to a complete stop and he didn’t sound like he really wanted me to leave”; that he told Arashiro, “Take off the watch. I like wear ‘um for the time being”; that he was carrying the razor “for [his] own protection”; that while in the car, he “was playing with” the razor but did not threaten Arashiro with it; that he never threatened Arashiro; that he told Arashiro not to try to signal for help; that he sprayed the rag and sniffed it without Arashiro’s permission; that “[a]ll I was going do was just go for one ride and after I felt like driving the car and I was going go back home, stop the car, give him back the watch, tell him I sorry. I never mean to hurt him in any way, and I just was going give him back the car and that was it”; that “[i]t’s just at the time when I was in the car that I was feeling like I was a loser since the time I got in the car so I really didn’t care what 1 was saying because I knew 1 was going get caught for what I did.”

The jury was instructed on the offenses of kidnapping, unlawful imprisonment in the second degree, robbery in the first degree, and terroristic threatening in the second degree.

I.

Halemanu contends that the lower court erred in denying his Rule 29, HRPP, motion for judgment of acquittal made at the close of the State’s evidence. After this motion was denied, Halemanu testified. Consequently, we must decide whether the introduction of evidence by Halemanu after his motion was denied was a waiver of that motion. This issue appears -to have been present in State v. Alfonso, 65 Haw. 95, 648 P.2d 696 (1982); State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), but was not discussed. There is authority on both sides of this question. See 8A Moore’s Federal Practice: Criminal Rules ¶ 29.05 (1981); 2 Wright, Federal Practice and Procedure: Criminal § 463 (1969).

We agree with the authority which favors application of the waiver doctrine in situations such as in this case and hold that when Halemanu testified, he waived any error in the prior denial of his motion for acquittal.

n.

Halemanu contends that the lower court erred in denying his Rule 29, HRPP, motion for judgment of acquittal made at the close of all the evidence.

Upon an appeal of the denial of such a motion for judgment of acquittal, the issue before this court is whether, upon the evidence, giving full play to the right of the trier of fact to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Rocker, supra; State v. Manipon, 2 Haw. App. 499, 634 P.2d 598 (1981). Stated another way, the issue is whether the record contains substantial evidence to support the decision. State v. Summers, 62 Haw. 325, 614 P.2d 925 (1980); State v. Kekaualua, 50 Haw. 130, 433 P.2d 131 (1967).

A.

Halemanu contends that there is insufficient evidence that he was armed with a dangerous instrument.

The Hawaii Penal Code generally defines “dangerous instrument” as follows:

§ 707-700 Definitions of terms in this chapter. In this chapter, unless a different meaning plainly is required:

* * *

(4) “Dangerous instrument” means any firearm, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury[.] [Emphasis added.]

However, for purposes of the robbery in the first degree statute, the Hawaii Penal' Code defines “dangerous instrument” as follows:

§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft:

* * *

(b) He is armed with a dangerous instrument and:

at at ^

(ii) He threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property.

(2) As used in this section, “dangerous instrument” means any firearm, or other weapons, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or threatened to be used is capable of producing death or serious bodily injury. [Emphasis added.]

In this case, the only instrument in evidence is a 1V2 inch, single-edged razor blade attached to a metal backing almost two inches long which folds into a plastic holder about 2-5/16 inches long. Unquestionably, the instrument is capable of producing serious bodily injury. However, Halemanu contends that there is no evidence that he threatened to use it to cause Arashiro death or serious bodily injury.

A threat is a communicated intent to inflict harm. BLACK’S LAW DICTIONARY 1327 (Rev. 5th ed. 1979). Intent may be proven and often must be proven by circumstantial evidence and reasonable inferences to be drawn therefrom. State v. Hernandez, 61 Haw. 475, 605 P.2d 75 (1980); State v. Wilkins, 1 Haw. App. 546, 622 P.2d 620 (1981).

In our view, a reasonable mind might fairly conclude beyond a reasonable doubt from the evidence that Halemanu threatened Arashiro with his razor.

B.

In light of the dissent, sua sponte we note two issues which Halemanu did not raise at trial or in his points on appeal. First, when the trial judged instructed the jury, by agreement he defined “dangerous instrument” under Hawaii Revised Statutes (HRS) (1976, as amended) section 707-700(4)’s definition rather than under HRS (1976) section 708-840(2)’s definition. Thus, he instructed the jury as follows:

“Dangerous instrument” means any firearm or other weapon, device, instrument, material, or substance whether animate or inanimate which in the manner it is used or intended to be used is known to be capable of producing death or serious bodily injury. [Emphasis added.]

Second, although the difference between robbery in the first degree (HRS section 708-840 (1976)) and robbery in the second degree (HRS section 708-841 (1976)) is the presence or absence of a dangerous instrument, the trial judge was not requested to, and he did not, instruct the jury about robbery in the second degree.

Although an error in the instructions to which no objection is made at trial may not be assigned as error on appeal (Rule 30(e), HRPP (1977)) and an error in the instructions which is not properly cited in the points on appeal in compliance with Rule 3(b)(5), Rules of the Supreme Court (RSC) will not be considered on appeal, State v. Shon, 47 Haw. 158, 385 P.2d 830 (1963); State v. Pacariem, 2 Haw. App. 277, 630 P.2d 650 (1981), appellate courts may notice plain errors or defects affecting substantial rights which were not brought to the attention of the court. Rule 52(b), HRPP (1977).

In this case, however, we find no plain error.

When jury instructions (or the omission thereof) are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading. State v. Reiger, 64 Haw. 510, 644 P.2d 959 (1982); State v. Lincoln, 3 Haw. App. 107, 643 P.2d 807 (1982).

In this case, although the trial judge erred in his instruction defining “dangerous instrument,” he correctly instructed the jury that the State was required to prove beyond a reasonable doubt that Halemanu, while committing theft and while armed with a dangerous instrument, threatened the imminent use of force against Arashiro and that he did so with the intent to compel acquiescence to the taking of or escaping with the property that was the subject of the theft.

Consequently, to find Halemanu guilty, the instructions required the jury to find that (1) while he was committing and while he was armed with a weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it was used or intended to be used was known to be capable of producing death or serious bodily injury; (2) Halemanu threatened the imminent use of force against Arashiro; and (3) he did so with intent to compel acquiescence to the taking or escaping with the stolen property.

Halemanu might argue that it could be that the jury found from the evidence that although he intended to use the razor to cause serious bodily injury, he threatened the imminent use of force by some means other than with the razor and thus the razor was not a dangerous instrument for purposes of the first degree robbery count. We disagree. The evidence indicates that if Halemanu threatened the imminent use of force against Arashiro, he did so with the razor.

A fortiori, the trial judge did not err in not instructing the jury about robbery in the second degree. Section 701-109(5), HRS (1976), provides that the court is not obligated to instruct the jury with respect to robbery in the second degree unless there is a rational basis in the evidence for a verdict acquitting Halemanu of robbery in the first degree and convicting him of robbery in the second degree.¹ As noted above, the evidence in this case allowed only two choices. Either Halemanu was guilty of robbery in the first degree or he was not guilty of robbery at all.

C.

Halemanu further contends that there is insufficient evidence of the kidnapping.

Halemanu was charged with kidnapping under HRS section 707-720(l)(c) (1976) which provides:

§ 707-720 Kidnapping. (1) A person commits the offense of kidnapping if he intentionally restrains another person with intent to:

* * *

(c) Facilitate the commission of a felony or flight thereafter[.]

Halemanu admits that the felony was the taking of the watch but contends that the restraint did not occur until he assumed control of the car and directed Arashiro to get back in the car.

Halemanu misreads the statute. Section 707-720(l)(c), HRS, does not require the intent to facilitate the commission of a felony or flight therefrom to exist at the start of the restraint. It only requires that the intent exist at any time during the restraint. Cf. People v. Tribble, 94 Cal. Rptr. 613, 484 P.2d 589 (1971).

Moreover, HRS section 707-700(5) provides that restraint means to restrict (by force or threat) a person’s movement in such a manner as to substantially interfere with his liberty. Here, there is substantial evidence that Halemanu restrained Arashiro from the moment Halemanu entered Arashiro’s car and told Arashiro to drive where Halemanu told him to.

Halemanu further contends that the statute requires the restraint to facilitate the commission of a felony or flight thereafter. State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). Again, he misreads the statute. It only requires an intent to facilitate, not actual facilitation.

III.

Halemanu contends that Count II of the indictment fails to state an offense and must therefore be dismissed.

Count II alleges:

COUNT II: On or about the 28th day of January, 1980, in the City and County of Honolulu, State of Hawaii, CORNWELL H. S. HALEMANU, while in the course of committing theft, and while armed with a dangerous instrument, to wit, a straight edge razor, did threaten the imminent use of force against Garrett Arashiro with the intent to compel acquiescence to the taking of or escaping with the property, thereby committing the offense of Robbery in the First Degree in violation of Section 708-840(1 )(b)(ii) of the Hawaii Revised Statutes.

As in State v. Tuua, 3 Haw. App. 287, 649 P.2d 1180 (1982), the first time Halemanu raised this issue is on appeal.

As in Tuua, this case presents no constitutional issue. Halemanu knew of the nature and cause of the accusation. In his opening statement, Halemanu’s counsel advised the jury that his client’s defense was that his conduct did not amount to the offenses of robbery and kidnapping. In his instructions to the jury, the trial judge quoted HRS section 708-840(b)(ii) (1976) verbatim.

The State’s proposed instruction no. 4 stated in relevant part: There are three material elements to this offense * * *

First: That the Defendant while in the course of committing theft was armed with a dangerous weapon;

Edward K. Harada, Law Student Intern, and Alvin T. Sasaki, Deputy Public Defender, (JonathanJ. Ezer, Deputy Public Defender, on reply brief), for defendant-appellant. Vicente F. Aquino, Deputy Prosecuting Attorney, for plaintiffappellee.

Second: That the Defendant did threaten the imminent uee [sic] of force against people present at the scene of the theft; and

Third: That the Defendant did so threaten with the intent to compel acquiescence to the taking of or escaping with the property that was the subject of the theft.

The trial judge amended paragraphs first, second, and third to read as follows:

First: That the Defendant while in the course of committing theft was armed with a dangerous instrument;

Second: That the Defendant did threaten the imminent use of force against Garrett Arashiro; and

Third: That the Defendant did so threaten acquiescence to the taking of or escaping with the property that was the subject of the theft.

Defense counsel’s only objection to the instruction which was given as amended was that “the instruction should state that the threats be made intentionally.” The amended instruction was given over that objection.

As in Tuua, the issue we must decide is whether Count II satisfies the requirement of Rule 7(c), HRPP (1977).

Tuua is precedent for the rule that common sense compels the inference from the explicit allegations that the imminently threatened force was injury to Arashiro with the straight-edge razor and that Arashiro was present when the threat was made. Consequently, we hold that Count II of the indictment states the offense of robbery in the first degree.

Affirmed.

1 The rule in HRS section 701-109(5) (1976) concerning instructions on lesser included offenses appears to be different from the rule concerning instructions on theories of defense as stated in State v. O’Daniel, 62 Haw. 518, 616 P.2d 1383 (1980).