State v. Valoroso. ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-FEB-2021
10:00 AM
Dkt. 67 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
–––O0O–––
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RANDAL VALOROSO,
also known as Randal J. Valoroso,
Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
FEBRUARY 26, 2021
GINOZA, C.J., AND HIRAOKA AND WADSWORTH, JJ.
OPINION OF THE COURT BY WADSWORTH, J.
Defendant-Appellant Randal Valoroso, also known as
Randal J. Valoroso (Valoroso), appeals from the "Judgment;
Conviction and Probation Sentence; Terms and Conditions of
Probation; Notice of Entry" (Judgment), entered on May 29, 2019,
in the Circuit Court of the Second Circuit (Circuit Court).1/
After a jury trial, Valoroso was convicted of the lesser-included
offense of Assault in the Second Degree (Assault Two), in
violation of Hawaii Revised Statutes (HRS) § 707-711(1)(a) (Supp.
1/
The Honorable Richard T. Bissen, Jr. presided.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2017).2/
On appeal, Valoroso contends that the Circuit Court
erred in failing to instruct the jury on "negligence as a defense
to [Valoroso's] state of mind."
We affirm the Judgment and hold that Valoroso was not
entitled to a jury instruction on negligence, where the negligent
state of mind was not applicable to the elements of the charged
offense, the included offenses, or Valoroso's defenses, and the
jury was properly instructed as to the applicable states of mind
for the charged offense and the included offenses.
I. Background
On June 28, 2018, Plaintiff-Appellee State of Hawai#i
(State) filed a Felony Information and Non-Felony Complaint
(Complaint) against Valoroso. The State alleged, among other
things, that on or about May 9, 2018, Valoroso intentionally or
knowingly caused serious bodily injury to Tracy Taylor (Taylor),
thereby committing the offense of Assault in the First Degree
(Assault One), in violation of HRS § 707-710(1) (2014).3/ The
Complaint stemmed from an incident at Taylor's residence in
Makawao, Maui (Property), in which Taylor suffered open fractures
of her left tibia and fibula and a moderately severe soft tissue
wound on her lower left leg after allegedly being pushed by
Valoroso.
A. Trial
Trial commenced on February 25, 2019. At that time,
Taylor's son, Christopher Gray (Gray), testified in part as
follows: On May 9, 2018, Valoroso parked his pickup truck and
trailer in the front yard of the Property, about ten feet away
2/
HRS § 707-711 provides, in relevant part:
(1) A person commits the offense of assault in the
second degree if:
(a) The person intentionally, knowingly, or
recklessly causes substantial bodily injury to
another[.]
3/
Two other counts were dismissed with prejudice before trial and
are not at issue in this appeal.
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from the front steps, and began staring at Gray. At the time of
the incident, Gray was temporarily staying with Taylor. Gray
said to Valoroso, "You need to move your truck out of my . . .
mother's yard." Valoroso, however, got out of his truck and
yelled at Gray, "[W]hat's the matter?" In response, Gray yelled,
"[Y]ou need to move your . . . F'ing truck out of my mom's
driveway." The situation "escalated into a physical altercation
[between Valoroso and Gray] really like almost immediately." The
fight "calmed down" and Taylor "comes out of the house."
According to Gray, Taylor asked Valoroso, "[W]ho are you?"
"[W]hat do you want?" Valoroso responded: "I am the owner of
this -- this is my land. I'm the son-in-law, and you have to do
what I say. You-all are losers and you-all need to leave."
Taylor told Valoroso, "[Y]ou need to leave," and he responded,
"[N]ot until I'm finished with him," referring to Gray. Taylor
then told Gray to head inside the house. Gray began heading up
the stairs when he saw Valoroso grab a 12- to 14-inch-long metal
object from the bed of his truck. Valoroso then "charg[ed]"
toward Gray.
Gray further testified that Taylor put both her hands
up and yelled, "Stop. Stop." Gray saw Valoroso "shove[]
[Taylor] up against the house[,]" after which, "[s]he slid down
kind of onto -- and fell on her behind." Gray also stated that
he saw Valoroso "jab[] whatever he had in his hand into my mom's
leg and even kind of dragged her a little bit."4/
At trial, Taylor testified in part to the following:
During the mid-afternoon of May 9, 2018, Taylor heard "a lot of
yelling" outside of her house, went outside to investigate, and
saw Gray "with his back up against the side of the house" and
Valoroso "in his face." Gray "had some blood coming down his
face." Taylor asked, "[W]hat's happening? . . . [a]nd [Valoroso]
started saying that he owned this land, that this property was
his." Taylor then asked, "[A]nd who are you?" and Valoroso
responded, "I am the son-in-law." Taylor then said, "[M]y
4/
In subsequent testimony, Dr. Kenneth Smith, who treated Taylor
after she was brought to the hospital emergency room, stated that he did not
see any evidence, in his opinion, that Taylor was stabbed by any object.
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landlord isn't home; you need to leave until he gets home."
According to Taylor, "[Valoroso] said, not until I'm finished
with him, and he pointed at [Gray]. He said, because you losers
need to leave." Taylor then "told [Gray] to get in the house."
Taylor next saw Valoroso "going back to his truck, [and]
rummaging around[.]"
Taylor continued her testimony as follows:
I was watching him at the truck, and he starts lunging
toward me. And I put my arms up and said, stop, stop. And
he kept coming, and he just lunged into me. . . .
And then all at once, it's like . . . he starts
pushing me someway under him. I don't know how he did it,
but I'm someway under and I start skidding along that
sidewalk on my side.
In further describing the incident, Taylor stated that Valoroso
made contact with "[m]y upper body . . . as I'm pushed back into
the house. I was backed up into the house, like – like boom, and
then – and I'm off balance here now, and my – my leg goes up, and
I'm going under . . . ." After Taylor hit the ground, she had a
"pressure feeling" in her leg.
The defense denied this account of the incident. The
defense's theory of the case was that Taylor fell from the stairs
to the cement below while trying to intervene in the fight
between Valoroso and Gray, and that Valoroso did not cause
Taylor's injuries.
In support of this theory, the defense called two
witnesses at trial. The defense first recalled Maui Police
Department Officer Max Kincaid (Officer Kincaid), who had
responded to the Property on the day of the incident and had
testified during the State's case. Officer Kincaid was
questioned about alleged inconsistencies between Taylor's
testimony and her statement in Officer Kincaid's report. Officer
Kincaid testified, among other things, that he did not recall
Taylor telling him that Valoroso had "retriev[ed] a weapon from
the trailer," and that Taylor did not mention "anything about Mr.
Valoroso stabbing her with a weapon[.]"
Witness Serena Martelles (Martelles), who lived across
the street from the Property, also testified for the defense.
She stated that on the day of the incident, she heard a loud
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commotion while sitting at her dining table. She went to her
living room window and saw Gray, whom she referred to as "the
haole boy," and another person, whom she referred to as "the
local boy," yelling at each other; she did not see anything
physical at that point. Martelles went back to her dining table
for a few minutes, and then to the kitchen sink, where she could
still hear yelling. Martelles returned to the window and saw an
"old lady come outside." The "old lady" was "telling the local
boy to stop already, enough[,]" and her hands were up. Martelles
turned away for less than a minute, turned back, and saw Taylor
on the ground screaming. Martelles did not see "the local boy"
physically touch Taylor and was not able to identify Valoroso in
the court room.
During closing arguments to the jury, defense counsel
stated in relevant part:
Mr. Valoroso is innocent of this. He did not charge
at Ms. Taylor. He did not slam her against the wall. He
did not drag her underneath him, drag her against the
ground. He did not stab her. And most importantly, he did
not cause this injury to her, this horrific injury.
B. Jury Instructions
On February 25, 2019, Valoroso filed proposed jury
instructions, which included a request that Hawai#i Standard Jury
Instruction Criminal (HAWJIC) No. 6.05, entitled "State of Mind -
Negligently," be given to the jury.5/ However, on February 26,
5/
HAWJIC No. 6.05 states:
STATE OF MIND -- NEGLIGENTLY
A person acts negligently with respect to his conduct
when he should be aware of a substantial and unjustifiable
risk taken that the person's conduct is of the specified
nature.
A person acts negligently with respect to attendant
circumstances when he should be aware of a substantial and
unjustifiable risk that such circumstances exist.
A person acts negligently with respect to a result of
his conduct when he should be aware of a substantial and
unjustifiable risk that his conduct will cause such a
result.
A risk is substantial and unjustifiable if the
person's failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him,
involves a gross deviation from the standard of care that a
(continued...)
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2019, during the Circuit Court's conference with the parties to
settle jury instructions, HAWJIC No. 6.05 was not discussed, and
defense counsel made no request to include that instruction or
any other instruction regarding negligence. During the
conference, the Circuit Court noted that it would give HAWJIC
Nos. 6.02, 6.03, and 6.04, which define, respectively, the state
of mind in acting "intentionally," "knowingly," and "recklessly."
The Circuit Court did not mention HAWJIC No. 6.05 or any other
instruction regarding negligence, and defense counsel did not
object. Near the end of the conference, after the State's
proposed special instructions were discussed, the court asked,
"Does the defense have any instructions to submit?" Defense
counsel responded, "Defense does not." After discussing all of
the instructions that would be given, as well as the jury form,
the Court asked counsel, "Anything else for – with regard to jury
instructions or verdict form?" Defense counsel responded, "No,
your Honor."
The next day, after the close of evidence, the jury
instructions were read to the jury. The court instructed the
jury on, among other things, the elements of Assault One and the
included offenses of Assault Two, in two alternatives,6/ and
5/
(...continued)
law-abiding person would observe in the same situation.
6/
The jury was instructed as follows regarding Assault Two:
Instruction [Number] 19: If and only if you find the
defendant not guilty of assault in the first degree, or you
are unable to reach a unanimous verdict as to this offense,
then you must consider whether the defendant is guilty of
the included offense of assault in the second degree.
This offense can be committed in either of two ways.
With respect to the first alternative, a person commits the
offense of assault in the second degree if he intentionally,
knowingly, or recklessly causes substantial bodily injury to
another person.
With respect to the second alternative, a person
commits the offense of assault in the second degree if he
recklessly causes serious bodily injury to another person.
In the first alternative, 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.
(continued...)
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Assault in the Third Degree (Assault Three). The court also
instructed the jury on the statutory definitions of
"intentionally," "knowingly," and "recklessly."7/ See HRS
6/
(...continued)
These two elements are:
1. That on or about May 9, 2018, in the County of
Maui, State of Hawaii, the defendant caused substantial
bodily injury to Tracy Taylor; and
2. That the defendant did so intentionally, knowingly,
or recklessly.
In the second alternative, 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.
These two elements are:
1. That on or about May 9, 2018, in the County of
Maui, State of Hawaii, the defendant caused serious bodily
injury to Tracy Taylor; and
2. That the defendant did so recklessly.
You are to consider each alternative of assault in the
second degree separately. The fact you may find that one of
the alternatives has or has not been proved beyond a
reasonable doubt does not mean that you must reach the same
decision with respect to the other alternative.
In order to find the offense of assault in the second
degree has been proved, you must unanimously agree that the
same alternative or both of the alternatives have been
proved beyond a reasonable doubt.
Proof beyond a reasonable doubt of . . . one or both
of the alternatives will result in the conviction of only
one offense of assault in the second degree.
(Underscoring added.)
7/
Instruction Numbers 17 (intentionally), 18 (knowingly), and 20
(recklessly) were provided to the jury as follows:
Instruction [Number] 17: A person acts intentionally
with respect to his conduct when it is his conscious object
to engage in such conduct.
A person acts intentionally with respect to attendant
circumstances when he is aware of the existence of such
circumstances or believes or hopes that they exist.
A person acts intentionally with respect to a result of his
conduct when it is his conscious object to cause such a
result.
Instruction Number 18: A person acts knowingly with
respect to his conduct when he is aware that his conduct is
of that nature.
(continued...)
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§ 702-206; HAWJIC 6.02, 6.03, and 6.04.
Following closing arguments, the Circuit Court
concluded reading the instructions to the jury and then asked
both parties if there were any objections to the court's reading
of the jury instructions. Defense counsel stated, "No
objection."
After the jury began deliberations, the Circuit Court
reconvened on the record without the jury present. The court
noted that there had been a question from the jury and an agreed
upon response,8/ and that after the response was provided, the
jury informed the court that it had reached a verdict. The
verdict had not been read.
At that point, defense counsel first raised the issue
that Valoroso's proposed jury instructions had included "a 6.05
7/
(...continued)
A person acts knowingly with respect to attendant
circumstances when he is aware that such circumstances
exist.
A person acts knowingly with respect to a result of
his conduct when he is aware that it is practically certain
that his conduct will cause such a result.
. . . .
Instruction Number 20: A person acts recklessly with
respect to his conduct when he consciously disregards a
substantial and unjustifiable risk that the person's conduct
is of the specified nature.
A person acts recklessly with respect to attendant
circumstances when he consciously disregards a substantial
risk -- a substantial and unjustifiable risk that such
circumstances exist.
A person acts recklessly with respect to a result of
his conduct when he consciously disregards a substantial and
unjustifiable risk that his conduct will cause such a
result.
A risk is substantial and unjustifiable if,
considering the nature and purpose of the person's conduct
and the circumstances known to him, the disregard of the
risk involves a gross deviation from the standard of conduct
that a law abiding person would observe in the same
situation.
(Underscoring added.)
8/
The jury had asked the following question: "If we believe the
injury to be substantial versus serious, are we able to find the defendant
guilty to the second degree, first alternative, omitting the words knowingly
and intentionally?" The agreed upon response provided to the jury was:
"Please refer to Instructions 17, 18, 19, and 20." See supra notes 6-7.
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state of mind [instruction] for negligent[ly], and it never made
it onto the fly sheet for the settling of the jury instructions."
Defense counsel continued: "I did not catch it during the
settling of jury instructions, and it only just came back to me
at this point." The Circuit Court then heard argument from
defense counsel, which included the following exchange:
THE COURT: . . . . Which legal defense being offered
by the defen[se] would have required the instruction of
negligence?
[DEFENSE COUNSEL]: That this was not proved beyond a
reasonable doubt, that the defendant's –- Mr. Valoroso's
state of mind did not rise to the level of intentional,
knowing, or reckless that is –-
THE COURT: So you would have -- your defense would
have been that he acted negligently?
[DEFENSE COUNSEL]: Yes. That's part of –- that's all
blanketed in this.
THE COURT: Except I heard all 25 minutes of your
closing argument, and not once did you argue negligence.
[DEFENSE COUNSEL]: I didn't argue –-
THE COURT: You argued -- you argued that it wasn't
him.
[DEFENSE COUNSEL]: Right. I didn't argue any state of
mind. . . .
. . . .
THE COURT: At what point in time would you have used
-- would you have argued negligence when throughout -- and
by the way, you gave an outstanding closing argument,
Counsel.
That -- at what time during that would you have said
to the jury, I want you to focus on the negligence
instruction?
[DEFENSE COUNSEL]: I would not have, your Honor.
THE COURT: It never came up?
[DEFENSE COUNSEL]: No, I would not have -- I would
not have done that. I would not have --
THE COURT: Because that wasn't your theory.
[DEFENSE COUNSEL]: No, your Honor.
The Circuit Court also discussed with defense counsel
the applicable states of mind of the charged and included
offenses, as follows:
THE COURT: Let me ask this question: Why did you
even propose [the negligence instruction]? Why did you
propose it?
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[DEFENSE COUNSEL]: Well, in the event that the jury
is potentially coming back finding that, you know, he has
responsibility in this.
THE COURT: Right. So under what definition would you
have asked the Court to -- to put it in there when none of
the offenses that were being charged, even the included
offenses, had that state of mind?
[DEFENSE COUNSEL]: Well, then that's a defense --
THE COURT: The lowest state of mind was reckless.
[DEFENSE COUNSEL]: And then that's a defense right
there.
THE COURT: That's a defense?
[DEFENSE COUNSEL]: Right there because --
THE COURT: That you did not argue?
[DEFENSE COUNSEL]: No, that is a defense right there,
that if we have every -- for the -- you know, the charge as
it is, the lesser's that's included, all of them have
defined states of mind that must be met.
THE COURT: Right.
[DEFENSE COUNSEL]: And the negligence standard is a
defense at this point.
THE COURT: Okay. So what are you asking the Court to
do? (Inaudible.)
[DEFENSE COUNSEL]: Yes, your Honor. Based upon the
-- you know, this not making it into the instructions, not
being discussed, defense is moving for a mistrial.
The State opposed Valoroso's motion for a mistrial, and
the Circuit Court denied the motion.
C. Conviction and Sentence
The jury found Valoroso guilty of the included offense
of Assault Two "in the first alternative." See supra note 6. On
May 29, 2019, the Circuit Court sentenced Valoroso to four years
of probation with conditions that included a one-year term of
incarceration.
Following entry of the Judgment, Valoroso timely
appealed.
II. Discussion
Valoroso argues that "[i]f the [Circuit] Court had
given the negligence instruction, the jury could have found that
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the State had not proven [its] case beyond a reasonable doubt
since the jury could have determined that [Valoroso's] state of
mind in committing the act in question was simply negligent and
not intentional or reckless."
We first note that Valoroso did not object to the
omission of the negligent state-of-mind instruction until after
the jury had reached a verdict. He must therefore demonstrate
instructional error. See Hawai#i Rules of Penal Procedure Rule
30(f); State v. DeLeon, 131 Hawai#i 463, 479, 319 P.3d 382, 398
(2014); State v. Nichols, 111 Hawai#i 327, 141 P.3d 974 (2006).
In the context of lesser-included-offense jury instructions, the
supreme court has held that "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. Malave, 146 Hawai#i 341, 349, 463 P.3d
998, 1006 (2020) (quoting State v. Flores, 131 Hawai#i 43, 57-58,
314 P.3d 120, 134-35 (2013)).
Here, Valoroso did not argue at trial that he acted
negligently in committing the acts at issue. Indeed, Valoroso
admitted below that negligence was not part of his defense
theory; rather, he claimed not to have caused Taylor's injuries.
Furthermore, the Circuit Court instructed the jury that
each of the material elements of Assault Two, in each
alternative, and Assault Three must be proven by the prosecution
beyond a reasonable doubt. In particular, Instruction Number 19
stated in relevant part: "In the first alternative, 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[,]" including that Valoroso caused substantial
bodily injury to Taylor, and that he did so "intentionally,
knowingly, or recklessly." See supra note 6; HRS
§ 707-711(1)(a). The jury was also instructed on the statutory
definitions of "intentionally," "knowingly," and "recklessly."
See supra note 7; HRS § 702-206.
On this record, the "negligent" state of mind was not
applicable to the elements of the charged offense (Assault One),
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the included offenses (Assault Two and Assault Three), or
Valoroso's defenses. See State v. Nakama, No. 28372, 2009 WL
953305, at *1 (Haw. App. Apr. 9, 2009) (SDO) (ruling that the
negligent state of mind was not applicable to the elements of the
defendant's charged offense of attempted murder in the second
degree, or the lesser-included assault offenses). Valoroso's
prospect for acquittal thus depended upon the jury finding an
absence of the intentional, knowing, or reckless states of mind
rather than a finding of negligence. Id. Morever, the State's
evidentiary burden was adequately covered by the Circuit Court's
jury instructions defining "intentionally," "knowingly," and
"recklessly," and by informing the jury that the State must prove
each statutory element of Assault Two and Assault Three beyond a
reasonable doubt. See State v. Stuart, 51 Haw. 656, 660-61, 466
P.2d 444, 447 (1970) ("[W]here a given proposition of law is
requested to be given in an instruction, the instruction may
properly be refused where the same proposition is adequately
covered in another instruction that is given. This is true even
where the refused instruction is a correct statement of the
law.").
Valoroso cites no authority indicating that the
omission of a jury instruction defining an inapplicable state of
mind — here, negligence — renders the instructions "prejudicially
insufficient, erroneous, inconsistent, or misleading." Malave,
146 Hawai#i at 349, 463 P.3d at 1006. Indeed, this court has
rejected similar arguments before. See, e.g., State v. Pattioay,
No. CAAP-XX-XXXXXXX, 2018 WL 2110089, at *1-2 (Haw. App. May 8,
2018) (SDO) (rejecting the defendant's argument that the trial
court erred in "fail[ing] to instruct on the knowing and
negligent states of mind," where the jury was properly instructed
as to the applicable states of mind for terroristic threatening
in the first degree — intentionally or recklessly); Nakama, 2009
WL 953305, at *1; see also State v. Tengbergen, No. 29302, 2009
WL 3478003, at *2 (Haw. App. Oct. 29, 2009) (SDO) (rejecting the
defendant's argument that the trial court erred "in refusing to
instruct the jury on the definition of a reckless state of mind,"
where the jury was properly instructed as to the applicable
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states of mind for unlawful entry into a motor vehicle —
intentionally or knowingly). Other jurisdictions have reached
comparable conclusions. See, e.g., State v. Fuqua, 13 P.3d 34,
35 (Mont. 2000) ("If the prosecutor has charged a crime which
requires proof of a knowing or purposeful mental state, the court
is not required to instruct on an alternative mental state of
negligence. . . . [T]he court need not instruct on a mental state
which is not an element of the offense charged."); State v.
Fetterly, 886 P.2d 780, 781-82 (Idaho Ct. App. 1994) (holding
that in a prosecution for wilful concealment, the defendant was
not entitled to a jury instruction on the statutory definition of
"negligence" to aid her defense theory that she acted negligently
but not wilfully).9/
Accordingly, we conclude that the Circuit Court did not
err in not instructing the jury regarding the negligent state of
mind.
III. Conclusion
For these reasons, we affirm the "Judgment; Conviction
and Probation Sentence; Terms and Conditions of Probation; Notice
of Entry," entered on May 29, 2019, in the Circuit Court of the
Second Circuit.
On the briefs: /s/ Lisa M. Ginoza
Steven Slavitt
for Defendant-Appellant /s/ Keith K. Hiraoka
Richard B. Rost,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Maui,
for Plaintiff-Appellee
9/
In the present case, negligence was not part of Valoroso's defense
theory. We do not decide whether a negligent state-of-mind instruction is
necessary or appropriate where the defendant is charged with assault and
claims to have acted negligently in causing the complaining witness's injury.
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