State v. Correia III. Dissenting Opinion by Ginoza, Chief Judge.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2022
12:17 PM
Dkt. 56 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
–––O0O–––
STATE OF HAWAI#I, Plaintiff-Appellant, v.
JOSEPH CORREIA III, Defendant-Appellee
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)
JUNE 30, 2022
HIRAOKA AND WADSWORTH, JJ., AND
GINOZA, CHIEF JUDGE, DISSENTING
OPINION OF THE COURT BY WADSWORTH, J.
Plaintiff-Appellant State of Hawai#i (State) appeals
from the "Order Denying [Defendant-Appellee Joseph Correia III's
(Correia)] Motion for New Trial; Entry of Dismissal as to Count
1" (Order 1) and the "Order of Dismissal of Count 1 Abuse of
Family or Household Members ([Hawaii Revised Statutes (HRS) §]
709-906(1) and (9))" (collectively, Dismissal Orders), entered on
October 19, 2018, by the Family Court of the First Circuit
(Family Court).1/
1/
The Honorable Karen T. Nakasone presided.
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Following a jury trial, Correia was found guilty on
Count 1 of Abuse of Family or Household Members in the Presence
of a Household Member Less Than 14 Years of Age, and guilty on
Count 2 of Abuse of Family or Household Members. The Family
Court subsequently ruled that Counts 1 and 2 merged, and ordered
dismissal of Count 1 due to instructional error.
On appeal, the State contends that the Family Court
erred in dismissing Count 1. The State requests that this court
vacate the Dismissal Orders and remand the case for a new trial
on Count 1.
We hold that the State's appeal is moot because we
cannot provide effective relief in the unusual circumstances of
this case. Even if we were to vacate the Dismissal Orders and
remand the case to the Family Court, Correia could not be
convicted on Count 1, because a final and non-appealable judgment
of conviction was entered on Count 2 based on the same conduct.
The principles of double jeopardy, as set forth in HRS
§ 701-109(1)(a) and (4), therefore bar a conviction on any
retrial of Count 1. Accordingly, this appeal is moot and must be
dismissed for lack of subject matter jurisdiction.
I. Background
On July 10, 2017, Correia was charged with: (1) Abuse
of Family or Household Members, in violation of HRS § 709-906(1)
and (9)2/ (Count 1 or Abuse of Family or Household Members in the
2/
At the time of the alleged offense, HRS § 709-906(1) and (9)
(Supp. 2016) provided, in relevant part:
Abuse of family or household member; penalty. (1) It
shall be unlawful for any person, singly or in concert, to
physically abuse a family or household member . . . .
For purposes of this section:
. . . .
"Family or household member":
(a) Means spouses or reciprocal beneficiaries,
former spouses or reciprocal beneficiaries,
persons in a dating relationship as defined
under section 586-1, persons who have a child in
common, parents, children, persons related by
consanguinity, and persons jointly residing or
(continued...)
2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Presence of a Household Member Less Than 14 Years of Age); and
(2) Abuse of Family or Household Members, in violation of HRS
§ 709-906(1) and (8)3/ (Count 2 or Abuse of Family of Household
Members – Impeding Breathing or Circulation). The charges
stemmed from an incident in which Correia allegedly assaulted his
wife, the complaining witness, in the presence of their seven-
year old daughter.
Following a jury trial, Correia was found guilty as
charged on Count 1, a class C felony, and guilty of the included
offense of Abuse of Family or Household Members on Count 2, a
misdemeanor.
On August 28, 2018, Correia filed a motion for a new
trial, contending in part that the jury instructions as to Count
1 were erroneous as to element four of the offense. Correia
argued that the instructions "allowed the jury to find that
[Correia] was 'reckless' as to his state of mind as to the
presence of the minor[,]" when HRS § 706-606.4 required a
"knowing" state of mind.
The State opposed Correia's motion for a new trial,
arguing that the jury instructions as to Count 1 were correct and
that Counts 1 and 2 merged. The State did not argue in the
alternative for a new trial on Count 1, i.e., in the event the
Family Court ruled that the jury instructions as to Count 1 were
erroneous.
On October 19, 2018, pursuant to the Dismissal Orders,
the Family Court denied Correia's motion for a new trial, but sua
2/
(...continued)
formerly residing in the same dwelling unit[.]
. . . .
(9) Where physical abuse occurs in the presence of a
minor, as defined in section 706-606.4, and the minor is a
family or household member less than fourteen years of age,
abuse of a family or household member is a class C felony.
3/
At the time of the alleged offense, HRS § 709-906(8) (2014)
provided:
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.
3
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sponte granted dismissal of Count 1. The Family Court reasoned
in part:
3. While the court agrees that the instruction on
Count 1 was erroneous, this does not mean that no conviction
can be had on Count 1, nor that a new trial is warranted.
The error in this instruction means that the facts required
for sentencing enhancement under HRS § 706-606.4, were not
properly found by the jury, and the sentencing enhancement
must be set aside.
4. Therefore, the jury's finding of physical abuse
under HRS § 709-906, with no felony sentencing enhancement
for "in the presence of a minor", still stands, and supports
a conviction for the misdemeanor offense of Abuse of Family
or Household Members. On Count 1, the court thus finds that
the misdemeanor Abuse offense conviction still stands, and
is appropriate.
. . . .
6. Based on the jury's responses to the merger
interrogatories, however, Counts 1 and 2 do merge. Based on
the jury's findings supporting merger, and in light of this
court's disposition of Count 1 above reducing the offense to
a misdemeanor, the Court enters a dismissal of Count 1.
Defendant will be sentenced only on Count 2, at sentencing.
The State did not move for reconsideration of the
dismissal of Count 1 or otherwise seek a new trial on Count 1.
On October 25, 2018, the Family Court entered the
Judgment of Conviction and Probation Sentence (Judgment),
convicting Correia on Count 2, Abuse of Family or Household
Members, in violation of HRS § 709-906 (1) and (5).4/ Correia was
sentenced to two years of probation, subject to certain terms and
conditions, including that he serve a 180-day term of
imprisonment. On the same date, the Family Court entered an
Order Pertaining to Bail Pending Appeal, which stated in part:
"If a Notice of Appeal is filed, then bail is set in the amount
of $1,000.00 during the pendency of appeal, until a Judgment on
Appeal is entered." On November 16, 2018, the State filed a
timely notice of appeal from Order 1, as well as an amended
notice of appeal challenging both Dismissal Orders.
On November 17, 2018, Correia filed a notice of appeal
from the Judgment, initiating case no. CAAP-XX-XXXXXXX. There is
no indication in the record, however, that Correia posted bail
4/
HRS § 709-906(5) provides, in relevant part: "Abuse of a family
or household member . . . [is a] misdemeanor[] . . . ."
4
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pursuant to the Order Pertaining to Bail Pending Appeal, and the
State's January 4, 2019 statement of jurisdiction in this appeal
(i.e., case no. CAAP-XX-XXXXXXX) asserts: "Based on the State's
files and records, it is the State's belief and understanding
that [Correia] is in custody in the case on appeal."5/ On
December 17, 2018, Correia filed a Stipulation for Voluntary
Dismissal of the Appeal in case no. CAAP-XX-XXXXXXX. On
January 4, 2019, this court entered an Order Approving
Stipulation for Voluntary Dismissal of the Appeal, pursuant to
which Correia's appeal was dismissed and the judgment of
conviction on Count 2 became final.
II. Discussion
The State contends that the Family Court erred in sua
sponte ordering dismissal of Count 1, because the proper remedy
for instructional error was to vacate the conviction as to Count
1 and to order a new trial on that count. Based on this
contention, the State requests that this court vacate the
Dismissal Orders and remand the case for a new trial on Count 1.
In response, Correia argues in part that this court
does not have jurisdiction because HRS § 641-13 "does not allow
the State to appeal from orders dismissing charges that have
merged with other charges for which the defendant has been found
guilty by a jury." Relatedly, Correia argues that the double
jeopardy clause precludes a retrial in these circumstances. The
State, which elected not to file a reply brief, has not responded
to these arguments.
"In general, 'this court does not have jurisdiction to
decide abstract propositions of law or moot cases.'" State v.
Nakanelua, 134 Hawai#i 489, 501, 345 P.3d 155, 167 (2015)
(brackets omitted) (quoting Lathrop v. Sakatani, 111 Hawai#i 307,
312, 141 P.3d 480, 485 (2006)). "[A] case is moot if the
reviewing court can no longer grant effective relief."
Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726
5/
As of October 25, 2018, Correia had served 74 days in custody.
The remaining 106 days of Correia's 180-day sentence, if served from
October 25, 2018, would have expired on or about February 8, 2019.
5
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(2007) (emphasis omitted) (quoting Kemp v. State of Hawai#i Child
Support Enforcement Agency, 111 Hawai#i 367, 385, 141 P.3d 1014,
1032 (2006)). "[M]ootness is an issue of subject matter
jurisdiction[,]" Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i
1, 4, 193 P.3d 839, 842 (2008), and we must raise the issue sua
sponte, Kapuwai v. City & Cty. of Honolulu, 121 Hawai#i 33, 40,
211 P.3d 750, 757 (2009) (concluding that "if the parties do not
raise the issue of a lack of subject matter jurisdiction, a court
sua sponte will." (brackets omitted) (quoting Tamashiro v. Dep't
of Human Servs., State of Hawai#i, 112 Hawai#i 388, 398, 146 P.3d
103, 113 (2006))).
The State's appeal from the Dismissal Orders is moot
because we cannot provide effective relief in these
circumstances. Even if we were to vacate the Dismissal Orders
and remand this case to the Family Court, Correia could not be
convicted of the offense – Abuse of Family or Household Members
in the Presence of a Household Member Less Than 14 Years of Age –
which the State seeks to retry.6/ See HRS § 701-109(1) and (4)
(Supp. 2018) (quoted infra).
The State is correct that "once instructional error is
demonstrated, we will vacate . . ., if there is a reasonable
possibility that the error contributed to the defendant's
conviction[.]" State v. Nichols, 111 Hawai#i 327, 337, 141 P.3d
974, 984 (2006). In such circumstances, we generally remand the
case for a new trial, unless we determine that substantial
evidence does not support the conviction or that retrial is
otherwise barred. See, e.g., State v. Kalaola, 124 Hawai#i 43,
62, 237 P.3d 1109, 1128 (2010) (affirming the ICA's judgment,
which vacated the defendant's conviction due to instructional
error and remanded for a new trial, where the supreme court
determined that sufficient evidence supported the conviction
based on part of the defendant's conduct, and double jeopardy did
not bar retrial with regard to that conduct).
Here, however, we are not asked to vacate a conviction
due to instructional error. We are asked to vacate the dismissal
6/
Thus, we do not reach the State's contention that the Family Court
erred in dismissing Count 1 when it found instructional error.
6
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of Count 1 and to remand it for retrial, where, pursuant to the
Judgment, Correia has already been convicted and sentenced on
Count 2, and the parties do not dispute that Counts 1 and 2
merged. Morever, the judgment of conviction on Count 2 became
final with the dismissal of Correia's appeal in case no. CAAP-18-
0000897.7/ Thus, we cannot vacate the judgment of conviction on
Count 2, as the dissent suggests.
In these circumstances, HRS § 701-109(1) comes into
play.8/
HRS § 701-109 (Supp. 2018) states, in relevant part:
(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:
(a) One offense is included in the other, as defined
in subsection (4) of this section[.]
. . . .
(4) A defendant may be convicted of an offense
included in an offense charged in the felony complaint,
indictment, or information. An offense is so included when:
(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged[.]
See State v. Alston, 75 Haw. 517, 532-33, 865 P.2d 157, 166
(1994) ("[A]n offense is a lesser included offense of another
offense if it 'satisfies the requirements set forth in HRS § 701-
109(4) which codifies the common law doctrine of lesser included
offenses." (original brackets omitted) (quoting State v. Burdett,
70 Haw. 85, 87, 762 P.2d 164, 165 (1988))).
"In order for the statutory protections against being
convicted of both a greater offense and its lesser included
offense to apply in a given case, the offenses must pertain to
7/
It also appears that Correia served all, or at least a substantial
part, of his 180-day sentence. See supra note 5 and accompanying text.
8/
In his answering brief, Correia argues in part that "re-
prosecution would be precluded by the double jeopardy clause." We construe
his argument as also invoking HRS § 701-109(1)(a). See State v. Brantley, 99
Hawai#i 463, 472, 56 P.3d 1252, 1261 (2002) (Levinson, J., concurring) ("[T]he
HRS § 701–109(1)(a) prohibition against convictions for both a lesser included
and the greater offense is grounded in the double jeopardy clause of the
Hawai#i Constitution[.]" (citing State v. Quitog, 85 Hawai #i 128, 130 n.4, 938
P.2d 559, 561 n.4 (1997)).
7
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the same conduct, not separate conduct." State v. Kalua, 144
Hawai#i 7, 16, 434 P.3d 1202, 1211 (2019). Here, the Family
Court concluded, and the parties do not dispute, that Counts 1
and 2 merged. See HRS § 709-109(1)(e); State v. Martin, 146
Hawai#i 365, 390, 463 P.3d 1022, 1047 (2020) ("HRS § 709-
109(1)(e) interposes a constraint on multiple convictions arising
from the same criminal conduct") (citing State v. Matias, 102
Hawai#i 300, 305, 75 P.3d 1191, 1196 (2003)). Accordingly, there
is no dispute that Counts 1 and 2 pertained to the same conduct.
"The general rule is that 'an offense is included if it
is impossible to commit the greater without also committing the
lesser.'" State v. Manuel, 148 Hawai#i 434, 440, 477 P.3d 874,
880 (2020) (brackets omitted) (quoting State v. Friedman, 93
Hawai#i 63, 72, 996 P.2d 268, 277 (2000)). Here, it is
impossible to commit the greater offense of Abuse of Family or
Household Members in the Presence of a Household Member Less Than
14 Years of Age without also committing Abuse of Family or
Household Members. All of the elements of the lesser offense are
included in the definition of the greater offense, which also
requires proof that the alleged physical abuse occurred "in the
presence of a minor,9/ . . . and the minor is a family or
household member less than fourteen years of age[.]" HRS § 709-
906(9) (footnote added); see id. § 709-906(1). Thus, under HRS §
701-109(1)(a) and (4), Correia cannot be convicted of both
offenses. Cf. Brown v. Ohio, 432 U.S. 161 (1977) (barring the
defendant's reprosecution for auto theft following a conviction
for the lesser included offense of joyriding).
Accordingly, it is apparent from the record that we do
not have the ability to grant the State effective relief. Even
if we were to vacate the Dismissal Orders and remand this case to
the Family Court, Correia could not be convicted on Count 1
because a final and non-appealable judgment of conviction was
entered on Count 2, which pertains to the same conduct. The
State's appeal from the Dismissal Orders is therefore moot, and
9/
"'In the presence of a minor' means in the actual physical
presence of a child or knowing that a child is present and may hear or see the
offense." HRS § 706-606.4(2).
8
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this appeal must be dismissed for lack of subject matter
jurisdiction.
For these reasons, this appeal is dismissed.
On the briefs:
Steven K. Tsushima, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellant.
/s/ Clyde J. Wadsworth
Emmanuel G. Guerrero Associate Judge
(Law Offices of Emmanuel G.
Guerrero, LLLC)
for Defendant-Appellee.
9
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DISSENTING OPINION BY GINOZA, CHIEF JUDGE
I respectfully dissent because, in my view, the Family
Court of the First Circuit (Family Court) erred in dismissing
Count 1 and instead should have allowed a retrial on Count 1
given the court's determination that improper jury instructions
had been given. This court is able to provide appropriate relief
on the State's appeal from the erroneous dismissal of Count 1.
Therefore, unlike the majority, I conclude this appeal is not
moot.
I. Jury Verdict and Merger Finding
A jury found Defendant-Appellee Joseph Correia III
(Correia) guilty on two counts:
• Count 1, that he abused his wife in the presence of
their seven-year-old daughter, a class C felony under
Hawaii Revised Statutes (HRS) §§ 709-906(1) and (9)
(Supp. 2019); and
• Count 2, that he abused his wife, a misdemeanor under
HRS §§ 709-906(1) and (5) (2014).1
The jury also answered special interrogatories that, the Family
Court determined and the parties do not contest, resulted in
Counts 1 and 2 merging.
II. Correia's Motion For New Trial
and the Family Court's Error
After the jury verdict, Correia filed a "Motion for A
New Trial" asserting, inter alia, that the Family Court's jury
instructions with respect to Count 1 were defective. Correia
thus requested that the Family Court "set aside the guilty
verdict as to Count 1" and "grant his motion for a new trial."
In considering Correia's motion for new trial, the Family Court
1
In Count 2, Correia was charged with abusing his wife by
intentionally or knowingly impeding the normal breathing or circulation of the
blood by applying pressure on her throat or neck, a class C felony, in
violation of HRS §§ 709-906(1) and (8) (2014). However, as to Count 2, the
jury found Correia guilty of the lesser included offense of abuse of a family
or household member, a misdemeanor under HRS §§ 709-906(1) and (5).
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
determined that its jury instructions on Count 1 were in error.2
However, instead of granting a new trial on Count 1 -- as
requested by Correia -- the Family Court sua sponte issued orders
dismissing Count 1 (the felony), and then entered a Judgment on
October 25, 2018, convicting Correia on Count 2 (the
misdemeanor). The Judgment noted that Count 1 had been
dismissed.3
The Family Court's sua sponte actions precluded the
State from retrying Count 1 with proper jury instructions. Such
a retrial, as requested by Correia, is the usual and appropriate
manner of remedying a conviction where there is a reasonable
possibility that erroneous jury instructions contributed to the
conviction. See State v. Cabinatan, 132 Hawai#i 63, 78, 319 P.3d
1071, 1086 (2014) (vacating convictions and remanding for new
trial where the court concluded "there is a reasonable
possibility that the instructional error contributed to
[defendant]'s conviction"); State v. Nichols, 111 Hawai#i 327,
329, 141 P.3d 974, 976 (2006) (holding that "an appellate court
will reverse for plain error in jury instructions where the error
cannot be said to be harmless beyond a reasonable doubt" and
remanding the case "for a new trial"). In other words, the
Family Court's sua sponte action dismissed the felony count,
Count 1, without a jury having had an opportunity to consider the
merits of that count with appropriate jury instructions (and
after a jury had previously convicted on that count).
The Family Court's reasoning for the sua sponte action
it took was as follows:
3. While the court agrees that the instruction
on Count 1 was erroneous, this does not mean that no
2
The propriety of the jury instructions is not raised in this appeal.
The focus in this appeal is whether, given the Family Court's determination
that the instructions on Count 1 were erroneous, the Family Court improperly
dismissed Count 1 sua sponte, instead of ordering a new trial on Count 1.
3
Pursuant to the Judgment, Correia was sentenced to two years of
probation subject to terms and conditions that included, inter alia, that he
"[s]erve a term of imprisonment of 180 days in [Count 2], effective
forthwith[.]"
2
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conviction can be had on Count 1, nor that a new trial
is warranted. The error in this instruction means
that the facts required for sentencing enhancement
under HRS § 706-606.4, were not properly found by the
jury, and the sentencing enhancement must be set
aside.
4. Therefore, the jury's finding of physical
abuse under HRS § 709-906, with no felony sentencing
enhancement for "in the presence of a minor", still
stands, and supports a conviction for the misdemeanor
offense of Abuse of Family or Household Members. On
Count 1, the court thus finds that the misdemeanor
Abuse offense conviction still stands, and is
appropriate.
. . . .
6. Based on the jury's responses to the merger
interrogatories, however, Counts 1 and 2 do merge.
Based on the jury's findings supporting merger, and in
light of this court's disposition of Count 1 above
reducing the offense to a misdemeanor, the Court
enters a dismissal of Count 1. Defendant will be
sentenced only on Count 2, at sentencing.
(Emphases added.) The Family Court's reasoning indicates that it
viewed the element of "in the presence of a minor" as only a
"sentencing enhancement" factor under HRS § 706-606.4.4
4
It appears the Family Court's reasoning stems from Correia's argument
in his Motion for New Trial that the jury instruction on Count 1 had set out
inconsistent states of mind, particularly that one part of the instruction
allowed for a "reckless" state of mind as to whether the abuse occurred "in
the presence of a minor," whereas another part of the instruction required
that Correia "intended or knew" that the minor was present. Correia asserted
a "knowing" state of mind was required under HRS § 706-606.4.
The jury instruction on Count 1 read, in relevant part:
A person commits the offense of Abuse of Family or Household
Members in the Presence of a Household Member Less than 14
Years of Age if he intentionally, knowingly, or recklessly
physically abuses a family or household member in the
presence of any family or household member who is less than
fourteen years of age.
There are five material elements of the offense of Abuse of
Family or Household Members in the Presence of a Household
Member Less than 14 Years of Age, each of which the
prosecution must prove beyond a reasonable doubt.
These five elements are:
1. That, on or about June 25, 2017 in the City and
County of Honolulu, the Defendant physically
abused Danyal Correia; and
(continued...)
3
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However, Count 1 is based on HRS §§ 709-906(1) and
5
(9), which refers to HRS § 706-606.4 simply for the definition
of "in the presence of a minor[.]" Conduct in violation of HRS
§§ 709-906(1) and (9) constitutes a class C felony offense.6
4
(...continued)
2. That the Defendant did so in the presence of a
minor, who was less than 14 years of age; and
3. That, at that time, Danyal Correia and the minor
were family or household members of the
Defendant; and
4. That the Defendant acted intentionally,
knowingly, or recklessly as to each of the
foregoing elements; and
5. That the Defendant intended or knew that the
physical abuse occurred in the presence of a
minor.
"In the presence of a minor" means in the actual physical
presence of a child or knowing that a child is present and
may hear or see the offense.
(Emphases added.)
5
As applicable to this case, HRS §§ 709-906(1) and (9) (Supp. 2019)
provided:
(1) It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member or
to refuse compliance with the lawful order of a police
officer under subsection (4). The police, in investigating
any complaint of abuse of a family or household member, upon
request, may transport the abused person to a hospital or
safe shelter.
. . .
(9) Where physical abuse occurs in the presence of a minor,
as defined in section 706-606.4, and the minor is a family
or household member less than fourteen years of age, abuse
of a family or household member is a class C felony.
(Emphases added.) Due to amendments to HRS § 709-906 that became effective in
January 2021, subsection (9) was renumbered to become subsection (10). See
2020 Haw. Sess. Laws, Act 19, § 3 at 275, 283.
6
A class C felony is subject to the following sentencing, in relevant
part:
[A] person who has been convicted of a . . . class C felony may be
sentenced to an indeterminate term of imprisonment . . . . When
ordering such a sentence, the court shall impose the maximum
length of imprisonment which shall be as follows:
(continued...)
4
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Separately, HRS § 706-606.47 sets out "aggravating factors" that
a trial court must consider, in addition to factors under HRS
§ 706-606, to determine the sentence for specified offenses,
including abuse of a family or household member.8
6
(...continued)
. . .
(b) For a class C felony - five years.
The minimum length of imprisonment shall be determined by the
Hawaii paroling authority in accordance with section 706-669.
HRS § 706-660(1) (2014) (Emphasis added.)
On the other hand, a misdemeanor is subject to the following sentencing:
After consideration of the factors set forth in sections 706-606
[(factors to be considered in imposing a sentence)] and 706-621
[(factors to be considered in imposing a term of probation)], the
court may sentence a person who has been convicted of a
misdemeanor . . . to imprisonment for a definite term to be fixed
by the court and not to exceed one year in the case of a
misdemeanor . . . .
HRS § 706-663 (Supp. 2021) (Emphasis added.)
7
As applicable to this case, HRS § 706-606.4 (Supp. 2019) provided:
§ 706-606.4 Sentencing in enumerated offenses
committed in the presence of a minor. (1) In addition to
the factors considered under section 706-606, the court
shall consider the following aggravating factors in
determining the particular sentence to be imposed:
(a) The defendant has been convicted of committing
or attempting to commit an offense; and
(b) The offense contemporaneously occurred in the
presence of a minor.
(2) As used in this section:
"In the presence of a minor" means in the actual
physical presence of a child or knowing that a child is
present and may hear or see the offense.
"Offense" means a violation of section 707-710
(assault in the first degree), 707-711 (assault in the
second degree), 707-730 (sexual assault in the first
degree), 707-731 (sexual assault in the second degree),
707-732 (sexual assault in the third degree), or 709-906
(abuse of family or household members).
(Emphases added.)
8
At the time relevant to this case, HRS § 706-606.4 applied to:
assault in the first and second degree; sexual assault in the first, second,
(continued...)
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In short, "in the presence of a minor" is an element
for the felony offense set out in HRS §§ 709-906(1) and (9); it
is not just an aggravating factor for purposes of sentencing.
Thus, in my view, the Family Court erred by: determining that its
erroneous jury instruction was only relevant to enhanced
sentencing; ruling that, because the jury found abuse on Count 1,
it could impose a conviction on Count 1 for misdemeanor abuse of
a family or household member; and then, because of merger, it
could dismiss Count 1 and enter judgment on Count 2.
In my view, having determined there had been error in
instructing the jury, the Family Court should have granted a new
trial on Count 1 as charged. If Correia was acquitted during
retrial on Count 1, judgment could then have been entered on
Count 2. If, however, Correia was found guilty during retrial on
Count 1, the State would then have had the option of convicting
Correia on either Count 1 or Count 2, and dismissing the other
count. See State v. Martin, 146 Hawai#i 365, 390-91, 463 P.3d
1022, 1047-48 (2020) (holding that defendant was convicted on
three counts for which the trial court plainly erred in not
giving a merger instruction and that "the State has the option of
dismissing two of the three charges and maintaining the judgment
of conviction and sentence on one charge." (footnote and citation
omitted)); State v. Hardoby, SCWC-XX-XXXXXXX, 2021 WL 1250382, at
*6 (Haw. April 5, 2021) (mem.); State v. Padilla, 114 Hawai#i
507, 517, 164 P.3d 765, 775 (App. 2007).
In Padilla, the defendant was convicted and judgment
was entered on two counts: felon in possession of a firearm or
ammunition; and place to keep a loaded pistol or revolver. 114
Hawai#i at 508-09, 164 P.3d at 766-67. On appeal, this court
8
(...continued)
and third degree; and abuse of a family or household member. Further, the
aggravating sentencing factors in HRS § 706-606.4 apply when the offense
occurs, inter alia, in the presence of a "minor," which is undefined in that
statute; whereas the class C felony under HRS § 709-906(1) and (9) requires
that the abuse occur in the presence of a minor who, inter alia, is "less than
fourteen years of age[.]"
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held that the circuit court had plainly erred in failing to give
a merger instruction for the two counts on which the defendant
had been convicted. Id. at 509, 164 P.3d at 767. However, it
was noted that HRS § 701-109 "only prohibits conviction for two
offenses if the offenses merge; it specifically permits
prosecution on both offenses[,]" and thus where the jury found
the defendant guilty on two merged charges, the State had the
option of either (1) dismissing one count and entering judgment
on the non-dismissed count or (2) retrying the defendant on both
counts with a merger instruction. Id. at 517, 164 P.3d at 775(underline emphasis added); see also State v. Feliciano, 107
Hawai#i 469, 480, 115 P.3d 648, 659 (2005) (stating that "the
double jeopardy clause (as applied in 'multiple punishments'
cases) ensures that the courts cannot punish a defendant beyond
what is authorized by the legislature." (emphasis added)). In
Padilla, this court therefore vacated the judgment that had been
entered on both counts and remanded for further proceedings. 114
Hawai#i at 518, 164 P.3d at 776.
III. Appropriate Relief on the State's Appeal
The State relies on HRS §§ 641-13(1) and (9) (2016) as
the statutory authority for its appeal. In his answering brief,
Correia appears to contend this court lacks appellate
jurisdiction under these provisions, although his argument is
based on a mixture of seeking to define what has occurred in this
unusual case, his interpretation of HRS § 641-13, and general
assertions that HRS §§ 701-109(2) and (3) (2014), as well as
double jeopardy, preclude a retrial.
A. The State's Appeal is Proper Under HRS § 641-13(1)
HRS § 641-13 provides in pertinent part:
§ 641-13 By State in criminal cases. An appeal may
be taken by and on behalf of the State from the district or
circuit courts to the intermediate appellate court, subject
to chapter 602, in all criminal matters, in the following
instances:
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(1) From an order or judgment quashing, setting
aside, or sustaining a motion to dismiss any
indictment, information, or complaint or any
count thereof;
. . .
(9) From a judgment of acquittal following a jury
verdict of guilty[.]
I conclude the State's appeal is proper under HRS
§ 641-13(1). In State v. Poohina, 97 Hawai#i 505, 509-10, 40
P.3d 907, 911-12 (2002), the Hawai#i Supreme Court addressed its
appellate jurisdiction over the State's appeal where a district
court had sua sponte decided, following closing arguments at
trial, to orally grant an acquittal and subsequently entered a
written order styled as an order granting a motion to dismiss.
The case involved a criminal contempt charge for violating an
injunction, and the district court sua sponte determined that the
complainant was no longer protected by the injunction because it
was issued when she was a minor and she had since become an
adult. 97 Hawai#i at 507-08, 40 P.3d at 909-10. The State
asserted its right to appeal under HRS § 641-13(1). Id. at 509,
40 P.3d at 911.
The defendant argued, inter alia, that HRS § 641-13(1)
was inapplicable because the district court's order was actually
a judgment of acquittal and he also asserted that principles of
double jeopardy applied. Id. The Hawai#i Supreme Court stated
"[t]he district court's order was not a judgment of acquittal,
and even if it were, it would have been an acquittal in form
only. The principles of double jeopardy do not apply because a
decision as to Poohina's guilt was never considered." Id. More
specifically, the court expressed:
The decision of the trial court was not a judgment of
acquittal. This court has cautioned against raising form
over substance. Concern over this type of jurisdictional
issue has led this court to state that "while form is not to
be exalted over substance in determining the double jeopardy
consequences of a rule terminating a prosecution, neither is
it appropriate entirely to ignore the form of the order
entered by the trial court." State v. Lee, 91 Hawai #i 206,
209, 982 P.2d 340, 343 (1999) (citing Sanabria v. United
States, 437 U.S. 54, 66, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)
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(citation and brackets omitted)). Thus, what constitutes an
acquittal is more dependent upon the intent of the ruling
rather than the label. Id. at 209, 982 P.2d at 343. In that
respect, this court adopted the United States v. Martin
Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51
L.Ed.2d 642 (1977) test in which "[a] defendant is acquitted
only when 'the ruling of the judge, whatever its label,
actually represents a resolution in the defendant's favor,
correct or not, of some or all of the factual elements of
the offense charged.'" State v. Dow, 72 Haw. 56, 64, 806
P.2d 402, 406 (1991) (citing Martin Linen Supply, 430 U.S.
at 571, 97 S.Ct. 1349).
Id. at 509-10, 40 P.3d at 911-12 (emphases added). The Hawai#i
Supreme Court reasoned that the district court had not reached
the merits of the case, did not enter any decision as to the
defendant's guilt, and thus its action "can in no way be
interpreted as an acquittal in substance." Id. at 510, 40 P.3d
at 912. The supreme court thus concluded the district court's
written "order granting defendant's motion to dismiss" accurately
reflected the course of the proceedings and the order was
appealable under HRS § 641-13(1). Id. The supreme court stated
that "[a]lthough the order was not entered in response to a
motion, it was an order of dismissal appealable under HRS
§ 641–13(1)." Id. (footnote omitted). After determining the
district court had improperly dismissed the case, the supreme
court "reverse[d] the judgment of the trial court and remand[ed]
the case for further proceedings." Id. at 512, 40 P.3d at 914(emphasis added).
This court, in State v. Markowski, 88 Hawai#i 477, 479-
82, 967 P.2d 674, 676-79 (App. 1998), similarly looked to the
essence of the trial court's rulings, not just the title of the
rulings, to determine whether a State's appeal was proper under
HRS § 641-13(1). In Markowski, this court held that a "judgment
of acquittal" on three counts based on defective charging,
entered by the circuit court after the State had rested its case
in a jury trial, was not a true acquittal. 88 Hawai#i at 479-81,
967 P.2d at 676-78. "[W]hat constitutes an 'acquittal' is not to
be controlled by the form of the judge's action." Id. at 483,
967 P.2d at 680 (citation omitted). Rather, "a defendant is
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acquitted only when the ruling of the judge, whatever its label,
actually represents a resolution in defendant's favor, correct or
not, of some or all of the factual elements of the offense
charged." Id. (citation, internal quotation marks, emphases and
brackets omitted); cf. Evans v. Michigan, 568 U.S. 313, 317, 324
(2013). In Markowski, the trial court had entered the judgment
of acquittal on four counts –- on the merits as to count I and
due to defective charging on counts II, III and IV.9 88 Hawai#i
at 480-81, 967 P.2d at 677-78. Subsequently, the trial court
also entered an order dismissing counts II, III and IV due to
defective charging. Id. at 481-82, 967 P.2d at 678-79. The
State appealed only from the order of dismissal, and this court
determined it had jurisdiction under HRS § 641-13(1). Id. at
482, 967 P.2d at 679. We further held the defendant would not be
subjected to double jeopardy if he was retried because the
judgment of acquittal was unrelated to the defendant's factual
guilt or innocence, we vacated both the judgment of acquittal and
the order of dismissal as to counts II, III and IV, and then
remanded the case for a new trial on the three counts. Id. at
484, 489, 967 P.2d at 681, 686.
In this case, the Family Court did not acquit Correia
of Count 1, did not address or resolve any factual elements of
the offense, and did not consider in any way the sufficiency of
the evidence presented. Rather, notwithstanding its
determination that the jury instructions on Count 1 were
incorrect, the Family Court accepted the jury's finding of abuse
and decided the "misdemeanor Abuse offense conviction still
stands[.]" Then, due to the jury's findings on merger and the
court's sua sponte disposition of Count 1 reducing it to a
misdemeanor offense, the Family Court dismissed Count 1 and
entered judgment against Correia only on Count 2.
9
A total of four counts were charged in Markowski and only count I
reached the jury, which returned a verdict of not guilty on that count. 88
Hawai#i at 480-81, 967 P.2d at 677-78.
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Under these circumstances, Correia clearly was not
acquitted of any charge and instead, because of the interplay of
the merger doctrine in this case, the Family Court dismissed
Count 1. Like in Poohina, although Correia never filed a motion
to dismiss Count 1, the State's appeal is still a proper appeal
pursuant to HRS § 641-13(1) because the Family Court dismissed
Count 1 and thus this court has jurisdiction.10 97 Hawai#i at
510, 40 P.3d at 912.
B. HRS §§ 701-109(2) and (3), and Double Jeopardy, Do Not
Preclude Retrial on Count 1
Correia asserts that HRS §§ 701-109(2) and (3) preclude
a retrial on Count 1. These provisions state:
(2) Except as provided in subsection (3) of this section, a
defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising from
the same episode, if such offenses are known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and are within the
jurisdiction of a single court.
(3) When a defendant is charged with two or more offenses
based on the same conduct or arising from the same episode,
the court, on application of the prosecuting attorney or of
the defendant, may order any such charge to be tried
separately, if it is satisfied that justice so requires.
Correia does not cite any case law in support.
In State v. Deedy, 141 Hawai#i 208, 407 P.3d 164(2017), the Hawai#i Supreme Court rejected the defendant's
argument that HRS § 701-109(2) precluded a retrial after a jury
deadlocked on certain offenses and a mistrial was declared. Id.
at 222, 407 P.3d at 178. The supreme court explained:
HRS § 701-109(2) simply has no application in this case
because all offenses with which Deedy was charged were tried
together at the first and second trials. Instead, HRS
§ 701-109(2) applies where there are charges arising from
the same conduct or the same episode and the State attempts
to try those charges separately. In this case, Deedy was
not being charged separately for the same course of conduct;
there is but one criminal action filed in the circuit court.
As discussed supra, a retrial on reckless manslaughter and
the included assault offenses is merely a "continuation" of
the same prosecution following the declaration of a mistrial
when the jury was deadlocked as to those offenses.
Id. (emphasis added) (citations omitted).
10
Given my conclusion under HRS § 641-13(1), I do not address HRS
§ 641-13(9).
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Similar to Deedy, a retrial in this case on Count 1 is
not precluded under HRS § 701-109(2) because Counts 1 and 2 have
been prosecuted in one criminal action. A retrial on Count 1,
with proper jury instructions, would be a continuation of the
same prosecution to address the erroneous instructions provided
to the jury in the first trial.
Moreover, although double jeopardy bars a retrial when
a conviction is reversed due to insufficient evidence, double
jeopardy does not preclude retrial when a conviction is reversed
due to trial error, such as erroneous jury instructions. State
v. Kalaola, 124 Hawai#i 43, 60, 237 P.3d 1109, 1126 (2010). In
analyzing cases addressing double jeopardy, the Hawai#i Supreme
Court stated:
The [U.S. Supreme Court] further explained that "the double
jeopardy clause forbids a second trial for the purpose of
affording the prosecution another opportunity to supply
evidence which it failed to muster in the first proceeding.
[Burks v. United States, 437 U.S. 1, 11 (1978)]. The Court
also distinguished reversal for evidentiary insufficiency
from that for trial error:
In short, reversal for trial error, as
distinguished from evidentiary
insufficiency, does not constitute a
decision to the effect that the government
has failed to prove its case. As such, it
implies nothing with respect to the guilt
or innocence of the defendant. Rather, it
is a determination that a defendant has
been convicted through a judicial process
which is defective in some fundamental
respect, e.g., incorrect receipt or
rejection of evidence, incorrect
instructions, or prosecutorial misconduct.
When this occurs, the accused has a strong
interest in obtaining a fair
readjudication of his guilt free from
error, just as society maintains a valid
concern for insuring that the guilty are
punished.
Id. at 15, 98 S.Ct. 2141 [ ].
. . . .
Relying on Burks, this court has determined that "the
prohibition against double jeopardy applies where the
reversal is based on insufficiency of evidence." [State v.]
Bannister, 60 Haw. [658,] 660, 594 P.2d [133,] 135 [(1979)].
. . . .
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However, the prohibition does not apply
where judgment is reversed for a trial
error because the effect of the decision
does not constitute a failure of the
government to prove its case. [Burks, 437
U.S.] at 10.
. . . .
[Bannister, 60 Haw.] at 660, 594 P.2d at 135[.]
Kalaola, 124 Hawai#i at 57-58, 237 P.3d at 1123-24 (emphases
added) (brackets and some emphases omitted).
Here, as noted previously, there was no acquittal on
Count 1 and no determination based on lack of sufficient
evidence. Indeed, Correia does not contend that double jeopardy
bars a retrial based on insufficient evidence presented in the
jury trial. Thus, given the instructional error in the jury
trial, I would vacate the orders dismissing Count 1, vacate the
Judgment of conviction on Count 2, and order a retrial on Count
1. Although the Family Court entered the Judgment on Count 2
(because of its determination that Counts 1 and 2 merged), there
is no reason this court cannot vacate that Judgment as part of
addressing the State's proper appeal. With respect to double
jeopardy, this case is effectively no different than Cabinatan or
Nichols, where a judgment of conviction had been entered and, due
to instructional error, the judgment was subsequently vacated on
appeal and a new trial was ordered. Cabinatan, 132 Hawai#i at
78, 319 P.3d at 1086; Nichols, 111 Hawai#i at 329, 141 P.3d at
976. Further, in a criminal case where the State appealed from a
dismissal order and this court determined there had been error in
dismissing three counts, we vacated both the dismissal order and
a related judgment, even though the appeal was taken only from
the dismissal order. Markowski, 88 Hawai#i at 481-82, 489, 967
P.2d at 678-79, 686; cf. Poohina, 97 Hawai#i at 512, 40 P.3d at
914.
Even with a new trial on Count 1, Hawai#i's statute on
merger (HRS § 701-109) permits prosecution on both Counts 1 and
2, so long as Correia is not convicted on both offenses that
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merge. Martin, 146 Hawai#i at 390-91, 463 P.3d at 1047-48;
Padilla, 114 Hawai#i at 517, 164 P.3d at 775. Should Correia be
found guilty on Count 1 during a retrial, the State would then
have the option of dismissing one of the counts and having
Correia convicted on the remaining count. Martin, 146 Hawai#i at
391, 463 P.3d at 1048; Padilla, 114 Hawai#i at 517, 164 P.3d at
775. However, should Correia be acquitted on Count 1 during a
retrial, judgment could then be re-entered on Count 2.
In either scenario, Correia would be entitled to time
served and any other appropriate consideration with respect to
sentencing. That is, after retrial on Count 1, whether Correia
was ultimately convicted on Count 1 or convicted on Count 2, he
would be entitled to full credit for the time he has served and
any other aspect of the sentence he has fulfilled under the
Judgment that was entered on October 25, 2018. In Wong v. Among,
52 Haw. 420, 425, 477 P.2d 630, 634 (1970), the Hawai#i Supreme
Court vacated judgments of conviction against the defendant
because he had plead guilty without being afforded his right to
counsel. In addressing double jeopardy issues on remand, the
supreme court concluded:
Because of the above constitutional improprieties, it is the
determination of this court that petitioner's convictions in
Cr. Nos. 26063, 26116, and 26147 are null and void and are
hereby set aside and the judgments entered therein are
vacated.
Having fully served his sentence on the charges of forgery
and passing a forged writing, Cr. No. 26147, petitioner's
constitutional guarantee against double jeopardy protects
him against further penalty on this charge. Ex Parte Lange,
85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). Should the
petitioner, upon remand of this case, be retried and
convicted on either or both of the other two charges, the
Fifth Amendment's prohibition against double jeopardy
requires that he be given full credit against any new
sentence for time served under the convictions which today
we set aside.
Id. (emphases added) (footnote omitted) (further citing North
Carolina v. Pearce, 395 U.S. 711, 718 (1969), overruled on other
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grounds by Alabama v. Smith, 490 U.S. 794 (1989)); see also Jones
v. Thomas, 491 U.S. 376 (1989) (holding that defendant's double
jeopardy rights were not violated where he was initially
convicted and sentenced on two offenses, the shorter sentence was
commuted and later vacated after he had completed that sentence,
and he was credited for time served on the shorter sentence
against his remaining longer sentence). In this case, Correia
can be retried on Count 1 while still protecting his double
jeopardy rights because he would not be "punished multiple times
for the same offense." See Feliciano, 107 Hawai#i at 476, 115
P.3d at 655.
IV. Conclusion
Based on the foregoing, I therefore respectfully
dissent. I would vacate the Family Court's orders dismissing
Count 1, vacate the Judgment entered on October 25, 2018, and
remand the case for a new trial on Count 1, with further
proceedings to address merger and double jeopardy concerns as set
forth above.
/s/ Lisa M. Ginoza
Chief Judge
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