State v. Hardoby

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
05-APR-2021
07:59 AM
Dkt. 18 MO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs
STACY EDWARD HARDOBY, also known as STACY EDWARD CAUSEY,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX(4))
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
Petitioner/Defendant-Appellant Stacy Edward Hardoby
(Hardoby) was convicted by a jury of two counts: Count 1 — first
degree unauthorized entry into a motor vehicle; and Count 2 —
felony abuse of a family or household member. Both convictions
arose from a dispute between Hardoby and his longtime girlfriend.
The incident giving rise to Hardoby’s convictions
occurred when Hardoby’s girlfriend was seated in her parked car
and Hardoby reached through the open window to strangle her with
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his hands. At the trial, Hardoby requested a merger instruction
and a special interrogatory on the issue of merger of offenses,
but the Circuit Court of the Second Circuit (circuit court)
concluded that the offenses did not merge and denied his request.
Hardoby appealed his conviction to the Intermediate
Court of Appeals (ICA) and argued that the circuit court erred
by not providing the jury with a merger instruction because the
offenses that he was charged with arose from the same factual
circumstances and were part of a continuing course of conduct.
The ICA reasoned that because Hardoby could have committed the
offenses separately, the offenses did not merge. The ICA
entered a Summary Disposition Order (SDO) affirming the circuit
court’s judgment.
Hardoby timely filed a motion for reconsideration to
the ICA based on this court’s decision in State v. Lavoie, 145
Hawaiʻi 409, 432-33, 453 P.3d 229, 252-53 (2019), which was
issued the same day as the ICA’s SDO in Hardoby’s case. Hardoby
argued that, in Lavoie, this court rejected an analysis that was
similar to the ICA’s analysis in his case and reaffirmed the
rule that a defendant has a constitutional right to have the
merger question determined by a jury. However, the ICA denied
Hardoby’s motion and entered its judgment on appeal.
In his application for writ of certiorari, Hardoby
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argues that the circuit court erred in refusing to give the jury
a merger instruction and that the only remedy for this error is
to vacate both of his convictions and remand for a new jury
trial.
Pursuant to Hawaiʻi Revised Statutes (HRS)
§ 701-109(1)(e) (2014),1 a defendant cannot be convicted of more
than one offense if the offense is continuous and the
defendant’s course of conduct was uninterrupted. As we stated
in Lavoie, 145 Hawaiʻi at 432, 453 P.3d at 252, “the jury is
tasked with making the factual determination of whether two
offenses merged.” Thus, the circuit court erred by failing to
instruct the jury to determine whether Hardoby had “one
intention, one general impulse, and one plan to commit both
offenses.” See id. at 433, 453 P.3d at 253. Consequently, the
ICA erred both by affirming the circuit court’s judgment and by
1 HRS § 701-109(1)(e) provides in relevant part,
Method of prosecution when conduct establishes an
element of more than one offense. (1) When the same conduct
of a defendant may establish an element of more than one
offense, the defendant may be prosecuted for each offense
of which such conduct is an element. The defendant may not,
however, be convicted of more than one offense if:
. . . .
(e) The offense is defined as a continuing course
of conduct and the defendant’s course of
conduct was uninterrupted, unless the law
provides that specific periods of conduct
constitute separate offenses.
(Emphasis added.)
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denying Hardoby’s motion for reconsideration in light of Lavoie.
However, Hardoby is incorrect that the only available
remedy for the error is to vacate both of his convictions and
remand for a new trial. The erroneous omission of the merger
instruction does not change the fact that the jury found that
Respondent/Plaintiff-Appellee State of Hawaiʻi (the State) proved
both counts. Pursuant to HRS § 701-109(1), the State could
prosecute Hardoby for each count — the merger error merely
precludes the entry of judgment of conviction on both counts.
Therefore, the remedy for the circuit court’s error is to remand
to the circuit court and allow the State the option to dismiss
one of the two counts and maintain the judgment of conviction
and sentence on the other, or, to retry Hardoby on both counts
with a merger instruction.
Accordingly, we vacate the ICA’s December 18, 2019
Judgment on Appeal and remand to the circuit court for further
proceedings consistent with this opinion.
I. BACKGROUND
On September 7, 2017, the State charged Hardoby by
information and complaint with one count of first degree
unauthorized entry into a motor vehicle (UEMV), in violation of
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HRS § 708-836.5 (2014)2 and one count of felony abuse of a family
or household member (felony abuse), in violation of HRS
§ 709-906(1) and/or (8) (2014).3 The charges4 arose from an
incident that occurred on September 5, 2017, when Hardoby
allegedly reached into the driver’s side window of his
girlfriend’s parked car and choked her with his hands.
2 HRS § 708-836.5 (2014) provides in relevant part:
Unauthorized entry into motor vehicle in the first
degree. (1) A person commits the offense of unauthorized
entry into motor vehicle in the first degree if the person
intentionally or knowingly enters or remains unlawfully in
a motor vehicle, without being invited, licensed, or
otherwise authorized to enter or remain within the vehicle,
with the intent to commit a crime against a person or
against property rights.
(2) Unauthorized entry into motor vehicle in the
first degree is a class C felony.
3 HRS § 709-906 (2014) provides in relevant part:
Abuse of family or household members; penalty. (1) It
shall be unlawful for any person . . . to physically abuse
a family or household member[.]
For the purposes of this section, “family or
household member” means spouses . . . persons in a dating
relationship . . . persons who have a child in common[.]
. . . .
(8) Where the physical abuse consists of
intentionally or knowingly impeding the normal breathing or
circulation of the blood of the family or household member
by applying pressure on the throat or the neck, abuse of a
family or household member is a class C felony.
4 Hardoby was also charged with assault in the third degree, but that
count was dismissed with prejudice and never presented to the jury.
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A. Circuit Court Proceedings
At Hardoby’s trial,5 the jury heard testimony from the
complaining witness (the CW), who was Hardoby’s former
girlfriend of eight years and the mother of his child. As
relevant here, the CW testified that the incident occurred while
she was sitting in the driver’s seat of her parked car and
having a heated discussion with Hardoby, who was standing
outside of the car and near her open door. The CW shut her car
door and told Hardoby that she would talk to him later. Hardoby
reached into the car through the open driver’s side window and
started to choke the CW using his body and arms, putting her
into a headlock. Then, Hardoby started to choke the CW’s neck
with his left hand, which lasted between ten and fifteen seconds.
Finally, Hardoby punched the CW on the left side of her face and
left the parking lot.
During the settlement of jury instructions, Hardoby
requested a merger instruction and filed a proposed jury
instruction and special interrogatory on the issue of merger of
offenses. The requested jury instruction provided that Hardoby
could only be convicted of both offenses if the prosecution
proved beyond a reasonable doubt that Hardoby (1) “did not
commit the offense of Unauthorized Entry into a Motor Vehicle in
5 The Honorable Richard T. Bissen, Jr. presided.
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the First Degree in Count 1 and Abuse of [a] Family [or]
Household Member in Count 2 as part of a continuing and
uninterrupted course of conduct[;]” and (2) “committed the
offense of Unauthorized Entry into a Motor Vehicle in the First
Degree in Count 1 and Abuse of a Family [or] Household Member in
Count 2 with separate and distinct intents, rather than acting
with one intention, one general impulse, and one plan to commit
both offenses[.]”
The State opposed the instruction, arguing that the
offenses did not merge because Hardoby could have committed the
UEMV offense without actually committing felony abuse, so long
as Hardoby intended to commit a crime. Hardoby disagreed,
arguing that a merger instruction was appropriate because
Hardoby’s actions consisted of a continuous course of conduct
with one intent. The circuit court agreed with the State that
the offenses did not merge because each has “separate” and
“[d]istinct elements” that “exist in one and not in the other.”
Consequently, the circuit court denied Hardoby’s request for a
merger instruction and a special interrogatory.
The jury found Hardoby guilty of both counts. The
circuit court sentenced Hardoby to concurrent terms of four
years’ probation for the UEMV count and five years’ probation
for the felony abuse count. The circuit court also ordered that
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Hardoby serve one year in jail as a condition of his probation.
B. ICA Proceedings
Hardoby appealed to the ICA. On appeal, Hardoby
argued that the circuit court erred by refusing to instruct the
jury on the law of merger and that, pursuant to
HRS § 701-109(1)(e) (2014),6 he could not be convicted of both
UEMV and felony abuse if his actions in committing the offenses
were “simultaneous and part of a continuing course of conduct.”
Hardoby further argued that whether his offenses were part of a
continuing course of conduct was a question for the jury to
decide. Accordingly, Hardoby maintained that the circuit
court’s jury instructions were erroneous and that the proper
remedy was for the case to be remanded for a new trial on both
counts.
The ICA affirmed the circuit court’s judgment of
conviction and held that the circuit court did not err in
refusing to give the requested jury instruction and
interrogatory. The ICA cited State v. Hoopii, 68 Haw. 246, 251,
710 P.2d 1193, 1197 (1985), where this court rejected a claim
that the offense of kidnapping merged with the offenses of rape
and sodomy and held that kidnapping was still a separate offense.
The ICA noted that in Hardoby’s case, the circuit court engaged
6 See supra note 1 for the relevant text of HRS § 701-109(1)(e).
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in an analysis similar to the Hoopii court when it reasoned that
the offenses of UEMV and felony abuse have separate elements
“that exist in one and not in the other.” The ICA similarly
reasoned that Hardoby did not need to strangle the CW to be
convicted of UEMV or to have entered the CW’s vehicle to be
convicted of felony abuse. Thus, the ICA concluded that the
offenses did not merge and the circuit court did not err in
refusing to give the requested jury instruction and
interrogatory.
Hardoby timely filed a motion for reconsideration. In
his motion, Hardoby argued that it was for the jury to determine
whether the UEMV and felony abuse offenses merged. Hardoby
cited this court’s decision in Lavoie, 145 Hawaiʻi at 432-33, 453
P.3d at 252-53, issued the same day as the ICA’s SDO in
Hardoby’s case, which reaffirmed the rule that a defendant has a
constitutional right to have the merger question determined by a
jury. Hardoby argued that, in Lavoie, this court rejected an
analysis that was similar to the ICA’s analysis in this case,
noting that “[t]rial courts are not tasked with making factual
findings regarding when each offense occurred or whether the
defendant’s conduct constitutes an uninterrupted continuous
course of conduct; the jury makes such determinations. Id. at
433, 453 P.3d at 253).
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The ICA denied Hardoby’s motion because it concluded
that “Hardoby has not presented any points of law or fact the
court has overlooked or misapprehended.” See Hawaiʻi Rules of
Appellate Procedure (HRAP) Rule 40(b) (2000) (providing that a
motion for reconsideration “shall state with particularity the
points of law or fact that the moving party contends the court
has overlooked or misapprehended”). On December 18, 2019, the
ICA entered its judgment on appeal.
II. STANDARDS OF REVIEW
A. Conclusions of Law
Conclusions of law are reviewed de novo under the
right/wrong standard of review. Maria v. Freitas, 73 Haw. 266,
270, 832 P.2d 259, 262 (1992).
B. Jury Instructions
The propriety of jury instructions is a question of
law reviewed de novo using the following standard: whether,
“when read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading.” State v. Bovee, 139 Hawaiʻi 530, 537, 394 P.3d 760,
767 (2017) (quoting State v. Frisbee, 114 Hawaiʻi 76, 79, 156
P.3d 1182, 1185 (2007)).
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III. DISCUSSION
Hardoby argues that because UEMV can “encompass a
continuing course of conduct[,]” he cannot be convicted of both
UEMV and felony abuse unless the trier of fact determines that
the offenses were not part of a continuous course of conduct.
For that reason, Hardoby maintains that the ICA erred by
concluding that a merger instruction was not required.
We have previously addressed this precise issue:
Generally, “[w]hen the same conduct of a defendant
may establish an element of more than one offense, the
defendant may be prosecuted for each offense of which such
conduct is an element.” HRS § 701-109(1) (2014). A
“defendant may not, however, be convicted of more than one
offense if ... [t]he offense is defined as a continuing
course of conduct and the defendant’s course of conduct was
uninterrupted, unless the law provides that specific
periods of conduct constitute separate offenses.” HRS
§ 701-109(1)(e). Thus, this court has concluded that only
one crime is committed when “(1) there is but one intention,
one general impulse, and one plan, (2) the two offenses are
part and parcel of a continuing and uninterrupted course of
conduct, and (3) the law does not provide that specific
periods of conduct constitute separate offenses.” State v.
Hoey, 77 Hawaiʻi 17, 38, 881 P.2d 504, 525 (1994).
Lavoie, 145 Hawaiʻi at 431, 453 P.3d at 251 (emphasis added).
The factual determination of whether a defendant acted with “one
intention, one general impulse, and one plan” must be made by
the trier of fact. Id. at 433, 453 P.3d at 252 (quoting State v.
Matias, 102 Hawaiʻi 300, 305, 75 P.3d 1191, 1196 (2003)); accord
Hoey, 77 Hawaiʻi at 38, 881 P.2d at 525. Thus, Hardoby may not
be convicted of more than one offense if: (1) either of the
offenses he was charged with are defined as a continuing course
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of conduct; and (2) his course of conduct was continuing and
uninterrupted; (3) so long as the statute does not provide that
specific periods of conduct constitute separate offenses. See
Lavoie, 145 Hawaiʻi at 431, 453 P.3d at 251.
A threshold issue is whether either of the offenses
Hardoby was charged with “is defined as a continuing course of
conduct[.]” See HRS § 701-109(1)(e).7 “Whether a particular
criminal offense can be charged as a continuous offense is a
question of law.” Lavoie, 145 Hawaiʻi at 431, 453 P.3d at 251.
“The test for whether a crime can be charged as a continuous
offense is whether the statute precludes charging an offense as
a continuous offense, and whether the element(s) of the offense
may constitute a continuous, unlawful act or series of acts[.]”
Id.
Here, Hardoby was charged with UEMV and the language
of the statute does not preclude UEMV from being charged as a
continuous crime. A person commits the offense of UEMV if he
“intentionally or knowingly enters or remains unlawfully in a
motor vehicle, without being . . . authorized to enter or remain
within the vehicle, with the intent to commit a crime against a
person or against property rights.” HRS § 708-836.5(1)
(emphasis added). Thus, the language of HRS § 708-836.5(1)
7 See supra note 1 for the relevant text of HRS § 701-109(1)(e).
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criminalizes a range of conduct that spans from a brief,
unauthorized entry into a vehicle to remaining in the vehicle
over a longer period of time. See State v. Faria, 100 Hawaiʻi
383, 389, 60 P.3d 333, 339 (2002) (holding that “for purposes of
the UEMV statute, ‘entry’ is defined as the least intrusion into
a motor vehicle with the whole physical body, with any part of
the body, or with any instrument appurtenant to the body
introduced for the purpose of committing a crime against a
person or against property rights.”) (footnote omitted); State v.
Lagat, 97 Hawaiʻi 492, 502, 40 P.3d 894, 904 (2002) (observing
that a person who breaks into a camper seeking shelter may be
charged with UEMV). Not only does the statute’s plain language
not preclude charging it as a continuing offense, the statute
actually criminalizes the continuing conduct of “remain[ing]
unlawfully in a motor vehicle.” HRS § 708-836.5(1) (emphasis
added).
Thus, the offense of UEMV meets the test for a crime
that can be charged as a continuous offense because (1) HRS
§ 708-836.5 does not preclude charging it as a continuous
offense; and (2) the elements of the offense — remaining
unlawfully in a motor vehicle — “may constitute a continuous,
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unlawful act or series of acts[.]”8 See Lavoie, 145 Hawaiʻi at
431, 453 P.3d at 251.
Both the UEMV and felony abuse charges arose from the
same altercation between Hardoby and the CW. Whether Hardoby’s
conduct constituted “‘separate and distinct culpable acts or an
uninterrupted continuous course of conduct’ was a question of
fact that was required to be determined by the jury.” See id.
at 433, 453 P.3d at 253 (quoting Matias, 102 Hawaiʻi at 306, 75
P.3d at 1197). Accordingly, because the offense of UEMV can be
charged as a continuous offense, it was for the jury — and not
the circuit court — to determine whether Hardoby had “one
intention, one general impulse, and one plan,” and whether UEMV
merged with the offense of felony abuse. See id. at 431, 453
P.3d at 251 (quoting Matias, 102 Hawaiʻi at 305, 75 P.3d at 1196).
See also Hoey, 77 Hawaiʻi at 38, 881 P.2d at 525 (holding that
“the question whether [the defendant]’s kidnapping offense
8 Moreover, the Legislature’s purpose in enacting the UEMV statute also
supports our determination that UEMV can be charged as a continuous offense.
See State v. Decoite, 132 Hawaiʻi 436, 438, 323 P.3d 80, 82 (2014) (“The test
to determine whether a crime may be charged on a continuous conduct theory is
whether the language, structure, and purpose of the statute reveals a
legislative intent to criminalize continuing conduct.”). According to the
commentary to HRS § 708-836.5, the Legislature added this section to the
Hawaiʻi Penal Code “due to the increased number of car thefts in the State.”
Thus, the Legislature’s decision to criminalize “remain[ing] unlawfully in a
motor vehicle” indicates that the Legislature explicitly considered that UEMV
could be charged as a continuing course of conduct and intended that it would
be a continuous offense in order to reduce the number of auto thefts. See
HRS § 708-836.5(1).
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merged into the robbery offense . . . is one of fact that should
have been submitted to the jury.”) (citation and footnote
omitted).
“The circuit court has the duty and ultimate
responsibility to instruct the jury on the proper and relevant
law.” Lavoie, 145 Hawaiʻi at 433, 453 P.3d at 253 (citation
omitted). Because the determination of whether the UEMV and
felony abuse offenses merged was a question of fact for the jury
to decide, the circuit court erred by refusing to provide a
merger instruction and the error was prejudicial. See id.
(holding that the trial court’s failure to instruct the jury on
the law of merger was prejudicial). Similarly, the ICA erred in
affirming the circuit court and holding that no merger
instruction was required.9
Next, we address Hardoby’s claim that the proper
remedy for the merger violation in his case is to remand to the
circuit court for a new trial to allow the jury to determine
whether the charged offenses merge. In State v. Padilla, the
ICA held that the trial court committed plain error by failing
9 Additionally, the ICA erred by denying Hardoby’s Motion for
Reconsideration. While the ICA did not have the benefit of this court’s
Lavoie decision when it entered its SDO, Hardoby did bring it to the ICA’s
attention in his Motion for Reconsideration and provided a copy of it to the
ICA as an exhibit. Thus, the ICA erred by concluding that Hardoby “has not
provided any points of law or fact the court has overlooked or
misapprehended[]” and denying Hardoby’s Motion for Reconsideration.
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to give a merger instruction in regards to firearms charges of
felon-in-possession and place-to-keep. 114 Hawaiʻi 507, 517, 164
P.3d 765, 775 (App. 2007). The State argued that even if the
trial court erred by failing to instruct the jury on the law of
merger, “a new trial is not necessary because the State could
obviate the error by dismissing either [of the two counts].” Id.The ICA agreed and remanded to the trial court, giving the State
the option of either dismissing one count and retaining the
judgment of conviction and sentence on the non-dismissed count,
or, retrying the defendant on both counts “with an appropriate
merger instruction.” Id. at 518, 164 P.3d at 776.
According to Hardoby, the remedy of allowing the State
to dismiss one of the two charges and maintain the judgment of
conviction and sentence on the other is only available if the
State concedes the merger instruction error and requests to
dismiss one of the counts.10
Hardoby is incorrect that the only remedy available in
this case is a new trial. Contrary to Hardoby’s argument, the
ICA’s remedy in Padilla springs from the text of HRS
§ 701-109(1)(e), and not from the State’s willingness to concede
10 In its response to Hardoby’s application for writ of certiorari, the
State maintains that the circuit court did not err by failing to provide a
merger instruction, but requests that if this court disagrees, the State be
permitted to dismiss one of the counts and maintain the judgment of
conviction on the other.
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the error on appeal. See id. at 517, 164 P.3d at 775. The ICA
considered the plain language of HRS § 701-109(1)(e) which “only
prohibits conviction for two offenses if the offenses merge; it
specifically permits prosecution on both offenses.” Id. The
ICA also reasoned that this court had followed a similar
approach in analogous situations. Id. (citing Garringer v.
State, 80 Hawaiʻi 327, 334–35, 909 P.2d 1142, 1149–50 (1996)
(remanding and giving the State the option of a new trial to
permit the jury to make the required findings of fact or
consenting to resentencing without the mandatory minimum); State
v. Vanstory, 91 Hawaiʻi 33, 48–49, 979 P.2d 1059, 1074–75 (1999),
superseded by statute on other grounds (remedying a merger
violation by reversing the defendant’s conviction for a lesser
included offense and affirming the defendant’s other
conviction)).
We agree with the ICA’s reasoning in Padilla.
HRS § 701-109(1)(e) permits the State to prosecute Hardoby for
both UEMV and felony abuse, but if his course of conduct was
continuous and uninterrupted, Hardoby may only be convicted for
one of those offenses. Here, the jury found Hardoby guilty
beyond a reasonable doubt of both charges. Accordingly, on
remand we afford the State the option of either dismissing one
of the two charges and maintaining the judgment of conviction
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and sentence on the non-dismissed count, or, retrying Hardoby on
both counts with an appropriate merger instruction.
IV. CONCLUSION
Accordingly, the ICA’s December 18, 2019 Judgment on
Appeal is vacated and this case is remanded to the circuit court
for further proceedings consistent with this opinion.
DATED: Honolulu, Hawaiʻi, April 5, 2021.
Benjamin E. Lowenthal, /s/ Mark E. Recktenwald
Deputy Public Defender,
for petitioner /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
Renee Ishikawa Delizo,
(Peter A. Hanano on the brief), /s/ Michael D. Wilson
Deputy Prosecuting Attorneys,
for respondent /s/ Todd W. Eddins
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