Hawaii Appellate Opinions

STATE OF HAWAII v. WERLE

No. 28653 (November 3, 2009)

Opinion pdf

OPINION OF THE COURT BY DUFFY, J.

On July 29, 2009, this court accepted a timely application for a writ of certiorari filed on June 22, 2009 by petitioner/defendant-appellant William Edward Werle (Werle) seeking review of the March 25, 2009 judgment of the Intermediate Court of Appeals (ICA) based on its March 11, 2009 Memorandum Opinion (Mem. Op.) in State v. Werle, No. 28653. The ICA's Mem. Op. affirmed the July 12, 2007 judgment of conviction and sentence of the district court of the second circuit (district court) for Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawai'i Revised Statutes (HRS) § 291E-61 (a) and/or (d) (Supp. 2006).

In his Application, Werle presents the following question: "Whether the ICA gravely erred, in violation of  Werle's rights to due process and fair trial, by affirming the trial court's admission into evidence of his purported blood alcohol test result, despite five evidentiary foundational defects." Oral argument was held on September 3, 2009.

The "five foundational defects" alleged by Werle are that

the State did not present evidence from a duly qualified expert that

(1) the "radiative energy attenuation" method (REA) was a "valid technique" for testing blood alcohol levels;

(2) [the] REA had been approved by the DUI Coordinator, as required by BAR § 11-114-22;

(3) the [Abbott AxSYM] used a blood alcohol testing procedure approved by the DUI Coordinator;

(4) the "dilution method" [the medical technician] employed when analyzing Werle's blood alcohol result (dilution) was reliable; and

(5) the "extrapolation method" [the lab technician] applied to the [Abbott AxSYM]'s blood alcohol reading of the diluted sample (extrapolation) was reliable.

Based on the following, we agree with Werle that there was an insufficient foundation laid for admission into evidence of his blood alcohol test result. Accordingly, we reverse Werle's conviction for OVUll. [footnotes omitted]

STATE v. ASSAYE

No. 29078 (September 30, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAYAMA, J.

Petitioner-Defendant-Appellant, Abiye Assaye ("Assaye"), has applied for a writ of certiorari from the Intermediate Court of Appeals' ("ICA") January 13, 2009 summary disposition order affirming the District Court of the First Circuit's ("trial court's") judgment convicting Assaye of the offense of excessive speeding, in violation of Hawai‘i Revised Statutes (HRS) § 291C-105(a)(1) and/or (a)(2) (Supp. 2006). In his application for writ of certiorari before this court, Assaye asserts that the ICA gravely erred (1) "in concluding that [Respondent-Plaintiff-Appellee, State of Hawai‘i ('prosecution'),] laid the requisite foundation for the admissibility of the laser gun reading pursuant to State v. Stoa, 112 Hawai‘i 260, 265, 145 P.3d 803, 808 (App. 2006)," and (2) "by failing to recognize that the [prosecution] did not lay the requisite foundation for admissibility of the laser gun reading as required by State v. Wallace, 80 Hawai‘i 382, 910 P.2d 695 (1996), and State v. Manewa, 115 Hawai‘i 343, 167 P.2d 336 (2007)." For the following reasons, we reverse the trial court's February 27, 2008 judgment because the ICA's decision is obviously inconsistent with both this court's decision in Manewa and its own decision in State v. Ito, 90 Hawai‘i 225, 978 P.2d 191 (App. 1999). [footnotes omitted]

Concurring opinion by J. Acoba pdf

STATE OF HAWAII v. DOMINGO

No. 29224 (Sept. 11, 2009)

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Fredy Domingo (Domingo) appeals from the Judgment of Conviction and Probation Sentence entered on June 2, 2008 (Judgment) in the Circuit Court of the First Circuit (Circuit Court).

Domingo entered a plea of no contest to the offense of Accidents Involving Death or Serious Bodily Injury, in violation of Hawaii Revised Statutes (HRS) § 291C-12 (2007). Domingo was sentenced to five years of probation and ordered to pay, inter alia, restitution of $13,225.94.

On appeal, Domingo contends that the Circuit Court erred by requiring that he pay restitution. Domingo also contends that the amount of restitution was unreasonable.

Domingo claims that his conduct, failing to remain at the scene of an accident, failing to give information, and failing to render reasonable assistance, in violation of HRS § 291C-14 (2007), did not cause the decedent's losses. The State agrees that the decedent in this case is not a victim, as defined in HRS § 706-646(1), and that there is no evidence in the record that the decedent's death was the result of Domingo's criminal acts. Thus, Domingo did not cause losses to the decedent, pursuant to HRS § 706-646(2). Based on the record in this case and applicable authorities, we agree that the Circuit Court erred by requiring Domingo to pay restitution. Therefore, we need not consider whether the amount of restitution was reasonable. [footnotes omitted]

STATE OF HAWAII v. SUAN

No. 29038 (Aug. 26, 2009)

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Defendant-Appellant Clayton Shane Suan (Suan) appeals from the Judgment of Conviction and Sentence (Judgment) filed on February 6, 2008 in the Circuit Court of the First Circuit (circuit court). A jury found Suan guilty of Unauthorized Control of a Propelled Vehicle (UCPV), in violation of Hawaii Revised Statutes (HRS) § 708-836 (Supp. 2008).

On appeal, Suan contends the circuit court (1) abused its discretion by allowing Officer Aiu to repeat inculpatory testimony on rebuttal, (2) abused its discretion and plainly erred by allowing the Deputy Prosecuting Attorney (Prosecutor) to question defense witnesses while asserting as fact matters not in evidence, and (3) plainly erred by permitting multiple instances of prosecutorial misconduct during closing argument that cumulatively denied Suan a fair trial. We vacate the Judgment and remand this case for a new trial. [footnotes omitted]

STATE v. BILLAM-WALKER

No. 28670 (Aug. 11, 2009)

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Defendant-Appellant John Billam-Walker (Walker) appeals from the Judgment of Conviction and Sentence (Judgment) filed on July 2, 2007 in the Family Court of the First Circuit (family court). A jury convicted Walker of two counts of Endangering the Welfare of an Incompetent Person, in violation of Hawaii Revised Statutes (HRS) § 709-905 (1993).

On appeal, Walker contends (1) the family court abused its discretion by denying Walker's last motion for a continuance; (2) there was insufficient evidence to convict Walker; (3) the family court erred by admitting unfairly prejudicial evidence; (4) HRS § 709-905 is unconstitutionally vague and overbroad; (5) the family court abused its discretion by denying Walker's motion for mistrial in light of prosecutorial misconduct; (6) the family court's jury instructions or lack thereof were prejudicially erroneous; (7) the family court abused its discretion by requiring Walker to attend domestic violence counseling as a condition of his probation; and (8) the cumulative effect of all of the errors deprived Walker of a fair trial. Walker asks this court to reverse his conviction. [footnotes omitted]

STATE v. LINE

No. 27850 (Aug. 11, 2009)

Opinion pdf

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Melodie C. Line (Petitioner) filed a petition for writ of certiorari on May 22, 2009, seeking review of the judgment of the Intermediate Court of Appeals (ICA) filed on April 28, 2009, pursuant to its April 7, 2009 Summary Disposition Order (SDO) affirming the March 3, 2006 Judgment of Conviction and Probation for Hindering Prosecution in the First Degree under Hawai‘i Revised Statutes (HRS) § 710-1029 (Supp. 2008), filed by the circuit court of the second circuit (the court). See State v. Line, No. 27850, 2009 WL 924509 (App. Apr. 7, 2009).

We hold that (1) unlawful police conduct is not a defense to a charge of Hindering Prosecution in the First Degree under HRS § 710-1029, however, (2) there was insufficient evidence to sustain a conviction for such an offense in this case, and therefore, the April 28, 2009 judgment of the ICA and the March 3, 2006 judgment of conviction of the court are vacated; but (3) the case is remanded to the court for entry of a judgment of conviction on the lesser included offense of Hindering Prosecution in the Second Degree. [footnotes omitted]

STATE OF HAWAII v. TUIALII

No. 29238 (June 30, 2009)

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Afa Tuialii (Tuialii) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion For Correction Of Illegal Sentence (Rule 35 Order), filed on June 4, 2008 in the Circuit Court of the First Circuit (Circuit Court).

Tuialii, a former payroll and accounts payable clerk, was charged with Theft in the First Degree, in violation of Haw. Rev. Stat. (HRS) § 708-830.5 (1) (a) (Supp. 2007), stemming from the transfer of over $76,000 from his employer's payroll account into his personal credit union account. Tuialii pled no contest to the charge and was sentenced to five years of probation and one year in jail (which was suspended except for time served). Tuialii was also ordered to pay restitution in the amount of $76,285.19 to his employer, Principle Hotels, LLC (Principle).

On appeal, Tuialii contends that the Circuit Court erred by denying his Motion for Correction of Illegal Sentence (Rule 35 Motion) because the Circuit Court failed to conduct a colloquy which advised him that restitution could be ordered as a consequence of his plea, thus rendering his no-contest plea unknowing and involuntary. Tuialii claims that the "illegal" restitution order must be vacated or Tuialii must be allowed to withdraw his plea. Tuialii further claims that restitution cannot be ordered because the victim received indemnification from its insurance company. We reject both arguments and affirm. [footnote omitted]

STATE OF HAWAII v. NAKAMURA

No. 28836 (June 29, 2009)

Opinion pdf

OPINION OF THE COURT BY FUJISE,J.

Defendant-Appellant Blake Yasuo Nakamura (Nakamura) appeals from the October 5, 2007 Amended Judgment and Sentence entered by the District Court of the First Circuit, Honolulu Division (district court), convicting him of the offense of Excessive Speeding in violation of Hawaii Revised Statutes (HRS) § 291C-105 (2007). As his sole issue on appeal, Nakamura challenges the imposition of a six-month driver's license suspension as a term of his sentence and argues that it is illegal. We agree with Nakamura that the district court was without authority to impose a six-month driver's license suspension for a violation of HRS § 291C-105. [footnote omitted]

STATE OF HAWAII v. KEKONA

No. 28634 (May 11, 2009)

Opinion pdf

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Francis K. Kekona (Kekona) appeals from the judgment entered by the Circuit Court of the First Circuit (circuit court) on June 4, 2007, convicting and sentencing him for attempted murder in the second degree in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 2008); carrying, using, or threatening to use a firearm in the commission of a separate felony in violation of HRS § 134-6(a) and (e) (Supp. 2005); ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes in violation of HRS § 134-7(b) and (h) (Supp. 2005); and place to keep pistol or revolver in violation of HRS § 134-6(c) and (e) (Supp. 2005).

Kekona contends that: (1) the circuit court erred when it granted the motion in limine filed by Plaintiff-Appellee State of Hawai‘i (State or prosecution) to prohibit him from introducing evidence of alleged acts of prior physical abuse of Kekona's girlfriend, Tammy Antonio (Antonio), by Sargent Ah Loo (Ah Loo), with whom Antonio had three children (motion in limine); (2) the circuit court erred when it overruled his trial counsel's objection to the State's closing statement that Kekona's self-defense argument could be rejected if the jury believed that Kekona had shot at Ah Loo with the intent to scare Ah Loo; and (3) the State committed seven separate acts of misconduct that cumulatively deprived him of his right to a fair trial.

We vacate the judgment and remand this case for a new trial. [footnotes omitted]

STATE OF HAWAII v. MARK

No. 26784 (May 8, 2009)

Opinion pdf

OPINION OF THE COURT BY RECKENWALD, C.J.

On March 4, 2003, Honolulu police received a tip concerning Defendant-Appellant Shane Mark. The caller reported that Mark would be at the Baskin-Robbins ice cream parlor in the Kapolei Shopping Center at about noon. Mark was wanted on a warrant in connection with a February 1, 2003 incident in which he allegedly shot Denny Paikai in the leg, and fired shots at John Piko.

A team of plainclothes Honolulu police officers, including Officer Glenn Gaspar, went to the Baskin-Robbins to arrest Mark. Officer Gaspar and Officer Calvin Sung approached Mark and attempted to place him under arrest. A struggle ensued and Mark, who was armed, fired three shots. Officer Gaspar was fatally wounded. Other officers assisted Officer Sung in subduing Mark, and placed him under arrest.

Two indictments were returned against Mark. In Criminal No. 03-1-04 95 (Mark I), Mark was charged with the attempted murder in the second degree of Piko (Count I) and Paikai (Count II), in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 1996); carrying, using, or threatening to use a firearm in the commission of a separate felony in connection with the attempted murder of Piko (Count III) and Paikai (Count IV), in violation of HRS § 134-6(a) and (e) (Supp. 1999); and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (2004) (Count V).

In Criminal No. 03-1-0496 (Mark II). Mark was charged with the murder in the first degree of Officer Gaspar, in violation of HRS §§ 707-701(1) (b) (1993 & Supp. 2001) and 706-656 (Count I); the attempted murder in the first degree of Officer Sung, in violation of HRS §§ 705-500 and 707-701(1) (a) (Count II); carrying, using, or threatening to use a firearm in the commission of a separate felony, in connection with the murder of Officer Gaspar, in violation of HRS § 134-6(a) and (e) (Count III); possession prohibited of any firearm by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (Count IV); promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp. 2002) (Count V); and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (Count VI).

The Circuit Court of the First Circuit (circuit court) consolidated the cases at Mark's request, and they were tried to a jury in December 2003.2 On December 22, 2003, the jury returned a verdict on some of the counts. The jury found Mark guilty of murder in the second degree of Officer Gaspar, rather than the charged offense of murder in the first degree (Mark II, Count I). The jury also found him guilty on Count III in Mark II. and Counts II and IV in Mark I.

The jury was unable to reach a unanimous verdict as to the charges relating to Piko and Officer Sung. The circuit court declared a mistrial and delayed sentencing until after a retrial. A second trial was held in July 2004. The jury found Mark guilty of the attempted assault in the first degree of Officer Sung, rather than the charged offense of attempted murder in the first degree (Mark II, Count II), but was unable to reach a verdict as to the charges relating to Piko (Mark I. Counts I and III). The circuit court then dismissed those charges.

At sentencing, the State of Hawai'i (State) moved for extended terms of imprisonment. The circuit court denied the motion with regard to the counts of conviction in Mark I. but granted it with regard to the counts of conviction in Mark II, finding that Mark was a persistent and multiple offender and that extended terms of imprisonment were necessary for the protection of the public. Accordingly, the circuit court sentenced Mark to an extended term of imprisonment of life without the possibility of parole for Count I in Mark II, rather than the term of life with the possibility of parole that would otherwise apply to a second degree murder conviction. See HRS § 706-661 (Supp. 2003). The court also imposed extended terms of imprisonment on the other counts of conviction in Mark II.

Mark now appeals from the judgments entered on August 2, 2004 in both cases. On appeal, Mark advances a number of grounds for reversing or vacating his convictions. He argues that the circuit court erred by (1) granting in part the Honolulu Police Department's (HPD) motion to quash a subpoena for certain Internal Affairs Division records; (2) admitting a slow motion version of a videotape taken during the incident at the Baskin-Robbins and refusing Mark's proposed jury instructions on the videotape; (3) incorrectly instructing the jury on the justification of defense of others in the first and second trials; (4) referring the jury back to the court's instructions in response to a communication during deliberations in the first trial; (5) denying his motion for mistrial and his counsel's motion to withdraw during the second trial after it was discovered that the Office of the Public Defender (OPD) had represented Piko; and (6) denying his motion for a mistrial after it was discovered during the second trial that Piko believed that he had made a deal with the State in exchange for his testimony in the first trial, and after a juror received an anonymous voice mail which suggested that the juror should "watch [her] back." Mark further argues that he was denied a fair trial and impartial jury in the first trial based on factors including prejudicial publicity and the prosecutor's questioning of witnesses during trial, and that there was insufficient evidence to convict him of the attempted assault in the first degree of Officer Sung in the second trial.

For the reasons set forth below, we conclude that Mark's contentions are without merit, and accordingly, we affirm all of his convictions. [footnotes omitted]

STATE OF HAWAII v. BEREDAY

No. 28369 (May 7, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAMURA, J.

Defendant-Appellant Mariko Davis Bereday (Bereday) appeals from two December 18, 2006, Judgments entered by the District Court of the First Circuit (district court). Bereday was orally charged with two counts of negligent failure to control a dangerous dog, in violation of the Revised Ordinances Of Honolulu (ROH) § 7-7.2 {1990 & Supp. No. 7, 8-05 & Supp. No. 12, 2-08). The charges were based on allegations that Bereday negligently failed to prevent her dog, a Rottweiler named "Bobo," from attacking and biting a two-year-old boy and a five-year-old girl in separate incidents on May 8, 2005, and May 13, 2005, at a beach in Kahala.

After a bench trial, Bereday was found guilty as charged on both counts. With respect to the May 8th offense (Case No. 1P105-07481), the district court sentenced Bereday to six months of probation, with the condition that she perform 100 hours of community service, and ordered her to pay a $2,000 fine. The district court further ordered the humane destruction of Bobo. With respect to the May 13th offense (Case No. 1P105-07480), the district court sentenced Bereday to six months of probation, with the conditions that she serve five days in jail and perform 200 hours of community service, and ordered her to pay a $2,000 fine. The district court stayed Bereday's sentence pending appeal.

On appeal, Bereday argues that: 1) the City and County of Honolulu (the City) lacked enforcement jurisdiction over her offenses; 2) there was insufficient evidence to support her convictions; 3) ROH § 7-7.2(a), the ordinance under which she was convicted, is unconstitutionally vague and ambiguous; 4) the district court erred in denying her motion to sever the charges; and 5) the district court's imposition of a jail sentence and ordering the destruction of Bobo were unduly harsh and constituted an abuse of discretion.

For the reasons set forth in greater detail below, we Conclude that Bereday's first four arguments are without merit, and we therefore affirm her convictions. With respect to Bereday's sentencing claims, we conclude that for Bereday's May 13th offense, the district court was authorized to impose either a term of probation or imprisonment, but not both. The district court therefore erred in ordering Bereday to serve five days in jail as a condition of her six-month term of probation. We vacate Bereday's sentence on the May 13th offense and remand the case for resentencing on that offense. During the pendency of this appeal, we received notice that Bobo had died of natural causes. Thus, Bereday's claim that the district court erred in ordering the humane destruction of Bobo is moot. We affirm Bereday's sentence on the May 8th offense. [footnotes omitted]

STATE OF HAWAII v. ESPINOSA

No. 29094 (April 30, 2009)

Opinion pdf

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Rollie Dumasig Espinosa (Espinosa) appeals from the judgment filed in the District Court of the First Circuit, Honolulu Division (district court) on March 5, 2008, convicting him of street solicitation of prostitution in violation of Hawaii Revised Statutes (HRS) § 712-1207 (Supp. 2008) and sentencing him to serve thirty days in jail.

. . .

HRS § 712-1207 was enacted in 1998, after the Tookes decision and Act 204's amendment to HRS § 712-1200(1). We conclude that by including the phrase "in return for a fee" in HRS § 712-1207(2), the legislature intended to exclude a patron of a prostitute, such as Espinosa, from criminal liability under that statute. Therefore, we reverse the judgment filed in the district court on March 5, 2008.

Concurring Opinion by Reckenwald, C.J. pdf

STATE OF HAWAII v. WOODFALL

No 28838 (April 29, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAYAMA, J.

Defendant-Appellant-Petitioner Michael Woodfall ("Woodfall") petitions this court to review the Intermediate Court of Appeals' ("ICA's") November 18, 2008 judgment affirming the October 10, 2007 judgment of the first circuit court ("circuit court"), convicting Woodfall of the offenses of identity theft in the second degree, in violation of Hawai'i Revised Statutes ("HRS") § 708-839.7 (Supp. 2006), forgery in the second degree in violation of HRS § 708-852 (Supp. 2006), and attempted theft in the second degree, in violation of HRS § 708-500 (1993) and HRS § 708-831(1)(b) (Supp. 2006).  We accepted Woodfall's application for a writ of certiorari, and oral argument was held on March 19, 2008.

Woodfall asserts that the ICA gravely erred by affirming the circuit court's judgment of conviction, inasmuch as the HRS § 708-839.7 phrase "transmission of any personal information of another" prohibits the "transmission of any personal information" of an actual person, and he transmitted information associated with a fictitious person.

Because HRS § 708-839.7 is susceptible to two interpretations, we construe the statute under the rule of lenity and in favor of Woodfall.  Accordingly, we vacate the lower court's judgment and order and remand the case to the circuit court for re-sentencing. [footnotes omitted]

STATE OF HAWAII v. DAWSON

No. 28406 (April 8, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAMURA, J.

A computer check for warrants revealed an outstanding warrant for Defendant-Appellant Edward S. Dawson (Dawson). Upon encountering Dawson, a police officer detained Dawson for a few minutes to confirm that the physical paper warrant was still in the files of law enforcement. During this detention, the officer observed Dawson remove a glass pipe, commonly used to smoke crystal methamphetamine, from Dawson's pocket and place it in a nearby package. Once the outstanding warrant was confirmed,Dawson was arrested on the outstanding warrant and for possession of the pipe. We hold that Dawson's detention was lawful and that the trial court properly denied Dawson's motion to suppress the pipe, which was found to contain methamphetamine.

Dawson appeals from the Judgment of Conviction and Sentence (Judgment) filed on January 17, 2007, in the Circuit Court of the First Circuit (circuit court).  Plaintiff-Appellee State of Hawai'i (State) charged Dawson by complaint with 1) promoting a dangerous drug in the third degree, for possessing methamphetamine (Count I) and 2) possession with intent to use drug paraphernalia (Count II). The charges were based on the methamphetamine pipe observed by the officer while Dawson was detained and later recovered after Dawson's arrest. After a jury-waived trial based on stipulated evidence, the circuit court found Dawson guilty on both counts. The circuit court sentenced Dawson to five years of imprisonment on each count, to be served concurrently with each other and with a five-year term of imprisonment imposed in a separate case. The circuit court also imposed a one year mandatory minimum term on Count I based on Dawson's status as a repeat offender.

On appeal, Dawson argues that "[t]he existence of a 'possible warrant' did not constitute reasonable suspicion enabling the police to detain Dawson, thus the lower court erred in denying Dawson's motion to suppress the pipe containing residue which the police observed during his illegal detention." For the reasons set forth below, we disagree with Dawson's argument and affirm the circuit court's Judgment. [footnotes omitted]

Dissenting opinion by Foley, J. pdf

STATE v. ASUNCION

No. 28230 (March 30, 2009)

Opinion pdf

OPINION OF THE COURT BY WATANABE, PRESIDING J.

This appeal stems from a judgment entered by the District Court of the Third Circuit (district court) on October 4, 2006, convicting and sentencing Defendant-Appellant Chito Asuncion (Asuncion) for criminal contempt of court (criminal contempt) in violation of Hawaii Revised Statutes (HRS) § 710-1077 (1993), as a result of Asuncion's violation of a no-contact condition of his probation sentence. The criminal-contempt charge was filed against Asuncion after his probation period had expired and it was no longer possible to revoke probation.

Asuncion asserts that the district court: (1) erred in convicting him of criminal contempt because the proper penalty for violating a condition of probation is probation revocation; (2) unlawfully subjected him to an extension of his probation and additional punishment; and (3) erred in convicting him of criminal contempt because he was never given notice that if he violated a term or condition of his probation, he would be subject to a criminal-contempt charge after his probation period had expired. [footnote omitted]

STATE v. HINTON

No 27719 (March 19, 2009)

Opinion pdf

OPINION OF THE COURT BY MOON, C.J.

On January 29, 2009, this court accepted a timely application for a writ of certiorari, filed on December 17, 2008 by petitioner/defendant-appellee Marshall Hinton, seeking review of the Intermediate Court of Appeals' (ICA) September 18, 2008 judgment on appeal, entered pursuant to its August 26, 2008 summary disposition order (SDO). Therein, the ICA vacated the Circuit Court of the First Circuit's December 21, 2005 findings of fact (FOFs), conclusions of law (COLs), and order granting Hinton's motion to dismiss the indictment with prejudice. Oral argument was held on February 19, 2009.

Briefly stated, Hinton was indicted for allegedly touching the then-thirteen-year-old complainant [hereinafter, the complainant] on her genital area outside her clothing and was subsequently tried by a jury for sexual assault in the third degree, in violation of Hawai'i Revised Statutes (HRS) § 707-732(1)(b) (Supp. 2008). However, the trial court declared a mistrial after the jury was unable to reach a unanimous verdict and, upon motion by Hinton, dismissed the indictment with prejudice, pursuant to State v. Moriwake. 65 Haw. 47, 647 P.2d 705 {1982), discussed infra. On appeal by respondent/plaintiff/appellant State of Hawai'i (the prosecution) , a majority of the ICA concluded that the trial court abused its discretion in dismissing the indictment and, accordingly, vacated the trial court's dismisal. Judge Foley dissented, concluding that the "[trial] court did not abuse its discretion in dismissing the indictment against Hinton."

Hinton argues on application that "the ICA gravely erred in concluding that the trial court abused its discretion in dismissing the case under Moriwake" inasmuch as the ICA "improperly incorporated [a] novel 'separation of powers' consideration" into its analysis that "conflict[s] with Moriwake and its progeny." Based on the discussion below, we hold that the ICA erred in (1) injecting an additional "separation of powers" analysis into the Moriwake framework and (2) holding that the trial court abused its discretion in dismissing the indictment with prejudice. Accordingly, we reverse the ICA's judgment on appeal and affirm the trial court's December 21, 2005 FOFs, COLs, and order granting Hinton's motion to dismiss the indictment with prejudice. [footnotes omitted]

STATE OF HAWAI'I v. KASSEBEER

No. 27660 (Sep. 30, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On May 29, 2008, the defendant-appellant-petitioner Anthony Kassebeer, Jr., filed an application for a writ of certiorari, urging this court to review the memorandum opinion of the Intermediate Court of Appeals (ICA) in State v. Kassebeer, No. 27660 (Hawaii Ct. App. February 29, 2008) (ICA's mem. op.). The ICA affirmed the November 16, 2005 judgment of conviction and sentence of the circuit court of the first circuit, the Honorable Dexter D. Del Rosario presiding, convicting Kassebeer of sexual assault in the first degree, in violation of Hawai‘i Revised Statutes (HRS) § 707-730(1)(a) (Supp. 2003), and kidnapping, in violation of HRS § 707-720(1)(e) (1993). Kassebeer raises the following arguments: (1) he was denied his constitutional right to a fair trial through cumulative errors by the circuit court; (2) the circuit court erred in admitting Kassebeer's handgun into evidence; (3) the circuit court erred in admitting into evidence testimony of a prior incident of physical abuse by Kassebeer against Kassebeer's wife at the time of the incident (the complainant); (4) the circuit court failed to deliver a specific unanimity instruction as to the charge of kidnapping; (5) the circuit court erred in communicating its opinion that an offense had actually been committed; (6) the circuit court erred in preventing Kassebeer from effectively confronting and cross-examining witnesses called by the plaintiff-appellee-respondent State of Hawai‘i (the prosecution); and (7) the circuit court erred in refusing to grant Kassebeer's three motions for mistrial.

For the reasons that follow, we hold that the ICA erred in concluding (1) that the circuit court did not plainly err when it failed to include a specific unanimity instruction regarding the kidnapping charge and (2) that the circuit court did not prevent Kassebeer from effectively confronting and cross-examining the complainant. We therefore vacate the ICA's March 28, 2008 judgment and the circuit court's November 16, 2005 judgment. This matter is remanded to the circuit court for a new trial on the first degree sexual assault and kidnapping counts. [footnote omitted]

STATE OF HAWAI'I v. POND

No. 27847 (Sep. 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Petitioner/Defendant-Appellant Kevin Pond ("Pond") seeks review of the Intermediate Court of Appeals' ("ICA's") October 30, 2007 judgment on appeal, issued pursuant to its October 11, 2007 opinion, see State v. Pond, 117 Hawai'i 336, 181 P.3d 415 (App. 2007), affirming the second circuit family court's ("circuit court") March 2, 2006 judgment convicting him of the offense of abuse of family or household member, in violation of Hawai'i Revised Statutes ("HRS") § 709-906 (1993 & Supp. 2004) and interference with reporting an emergency or crime ("Interference offense") in violation of HRS § 710-1010. (1993 & Supp. 2004). We accepted Pond's application for a writ of certiorari, and oral argument was held on June 5, 2008.

Pond asserts that the ICA gravely erred by concluding that the Hawai'i Rules of Evidence ("HRE") Rule 404(b) notice requirement was a "condition precedent" to (a) admitting "critical evidence of the complainant's prior attack offered to establish [Pond's] justification of self defense and to establish the complainant as the "first aggressor,'" and (b) cross examining the complainant about her marijuana use on the night of the incident, because it violated Pond's constitutional rights to present a defense and confront adverse witnesses. Pond also asserts that the ICA gravely erred by affirming the conviction where "(a) the self-defense jury instructions were incomplete and misleading and (b) the instructions defining the Interference offense failed to specify that the state of mind requirement applied to each of these elements."

Because the circuit court precluded Pond from cross-examining the complaining witness about whether she used marijuana on December 12, 2005 to show that her perception was inaccurate, it committed reversible error. Accordingly, we vacate Pond's conviction of abuse of family or household member and Interference offense, and remand for a new trial consistent with this opinion. [footnotes omitted]

Dissenting Opinion by J. Acoba [pdf].  Concurring and Dissenting Opinion by J. Duffy [pdf]

STATE OF HAWAI'I v. PAVICH

No. 27987 (September 16, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

Dr. Edward Bird (Dr. Bird) was murdered in his apartment. He was repeatedly hit on the face and head with a blunt object and manually strangled to death. At the time of his death, Dr. Bird was approximately eighty-two years old and largely confined to a wheelchair.

Defendant-Appellant Michael Arlo Pavich (Pavich) and his co-defendant Lisa Ann Healani Avilla (Avilla) were charged with the murder of Dr. Bird and related offenses. They were jointly charged in an indictment with first-degree burglary of Dr. Bird's residence (Count 1); kidnapping Dr. Bird (Count 2); first-degree robbery of Dr. Bird (Count 3); and second-degree murder of Dr. Bird (Count 4). Pavich was separately charged in the indictment with possession of methamphetamine (Count 7) and possession with intent to use drug paraphernalia (Count 8), and Avilla was also separately charged with these two offenses (Counts 5 and 6).

Avilla entered into a plea agreement with Plaintiff-Appellee State of Hawai'i (the State) and testified against Pavich. She testified to witnessing Pavich murder Dr. Bird and commit the related burglary, kidnapping, and robbery offenses. Avilla was the only eyewitness to Pavich's alleged commission of these offenses.

. . . .

On appeal, Pavich argues that: 1) his rights to a fair trial and to present a defense were violated by a) the circuit court's mishandling of his request for peer review of Genetic Technologies' supplemental report and b) the State's failure to disclose certain representations it made to Avilla; 2) the circuit court erred by denying his motion to sever the drug paraphernalia count from the remaining counts; and 3) the circuit court erred by refusing to give the jury an instruction on the defense of extreme mental or emotional disturbance (EMED).

We hold that, under the unique circumstances of this case, the circuit court erred in refusing to grant Pavich's posttrial motion for approval of litigation costs to hire a DNA expert to conduct a peer review of Genetic Technologies' supplemental report. We remand the case with directions that the circuit court: 1) authorize reasonable litigation costs to permit Pavich to hire a DNA expert to conduct the requested peer review, and 2) allow Pavich to refile a motion for a new trial based on the results of the peer review.  We conclude that the other arguments raised by Pavich on appeal are without merit. [footnotes omitted]

STATE OF HAWAI'I v. ROMAN

No. 26359 (September 11, 2008)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On June 4, 2008, this court accepted a timely application for a writ of certiorari, filed on May 12, 2008 by petitioner/defendant-appellant Alfred J. Roman, requesting this court to review the February 11, 2008 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its January 22, 2008 summary disposition order. See State v. Roman, No. 26359 (App. Jan. 22, 2008) (SDO) (Dissent by Foley, J.). Therein, the ICA affirmed the Family Court of the Third Circuit's December 26, 2003 judgment, entered subsequent to a bench trial, convicting Roman of and sentencing him for abuse of family or household members, in violation of Hawai'i Revised Statutes (HRS) § 709-906(1) (Supp. 2005).

In his application, Roman argues, inter alia, that, although the ICA correctly concluded that the family court wrongly ruled that the parental discipline defense under HRS § 703-309(1) (1993), quoted infra, was inapplicable to the instant case, it erred in ultimately affirming his conviction. Specifically, Roman contends that the ICA erred in holding that the family court's erroneous refusal to apply the parental discipline defense was harmless based on its conclusion that respondent/plaintiff-appellee State of Hawai'i (the prosecution) had adduced sufficient evidence at trial to negate the defense beyond a reasonable doubt. Oral argument before the supreme court was held on August 21, 2008.

As discussed more fully infra, we agree with the ICA that the family court erred in ruling that the parental discipline defense was inapplicable, but hold that the ICA erred in concluding that the family court's erroneous ruling was harmless. Consequently, we vacate the ICA's February 11, 2008 judgment and reverse the family court's December 26, 2003 judgment. [footnotes omitted]

STATE OF HAWAI'I v. HEGGLAND

No. 27775 (August 8, 2008)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Petitioner/Defendant Gregory Heggland seeks review of the November 27, 2007 judgment of the Intermediate Court of Appeals (ICA), which vacated the sentence portion of the Circuit Court of the Third Circuit's January 17, 2006 judgment, and remanded the case to the circuit court to resentence Heggland. We accepted Heggland's application for a writ of certiorari and now vacate the judgment of the ICA and remand the case to the circuit court for resentencing. [footnote omitted]

Concurring opinion of Moon, C.J. [pdf].  Concurring opinion of Acoba, J. [pdf]

STATE OF HAWAI'I v. SOUZA

No. 27037 (Aug. 7, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

Defendant-Appellant John P. Souza (Souza) appeals his convictions for willfully filing false tax returns and for theft by deception of the tax refunds he received. At trial, Souza sought to introduce documentary evidence which he claimed would show that based on his good-faith understanding of the tax laws, he did not believe his tax returns were false. The Circuit Court of the First Circuit (circuit court) excluded the evidence on the grounds that Souza's tax theories were irrelevant and would confuse the jury. The circuit court concluded that Souza's tax theories were questions of law for a court to decide and not matters properly considered by the jury.  We hold that the circuit court harmfully erred in excluding certain documentary evidence Souza offered to show his understanding of the tax laws because the evidence was admissible on the issues of whether Souza willfully filed false tax returns and obtained the refunds by deception.  We reject Souza's claims that there was insufficient evidence to support his conviction and that the trial court should have sua sponte entered judgements of acquittal.  Accordingly, we vacate Souza's convictions and remand the case for a new trial.  [footnotes omitted]

STATE OF HAWAI'I v. RIPPE

No. 28255 (July 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case requires us to determine whether a police officer's request to a defendant for consent to search a bag constituted interrogation.  We must also decide whether the defendant, who denied ownership of the bag in response to the officer's request, abandoned the bag and thus relinquished any reasonable expectation of privacy in it.

. . . .

We affirm in part and vacate in part, and remand for further proceedings.  First, we conclude that Sergeant Cricchio's request that Rippe sign a consent form did not constitute interrogation, because the request was not reasonably likely to elicit an incriminating response.  Rippe's disclaimer of ownership of the bag is therefore admissible, although Rippe's responses to Cricchio's follow-up questions were properly suppressed because those questions did constitute interrogation.

Second, considering Rippe's disclaimer of ownership of the bag in light of the surrounding circumstances, we conclude that Rippe abandoned the bag. . . . Finally, we conclude that Rippe's statements to police on the day after his arrest were not fruit of the poisonous tree, subject however to the circuit court's determination of the lawfulness of the search of the BMW and seizure of the bag.

STATE v. KAMANAO

No. 28236 (July 23, 2008)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Andrew K. Kamanao (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on January 3, 2008, pursuant to its December 13, 2007 Summary Disposition Order (SDO) affirming the October 16, 2006 amended judgment of the first circuit court (the court) convicting Petitioner of two counts of rape in the first degree, Hawai‘i Revised (HRS) § 707-730(1)(a)(i) (1985) (Counts VI and IX); and one count of sodomy in the first degree, HRS § 707-733(1)(a)(i) (1985) (Count XI). The appeal to the ICA was from the court's sentence of Petitioner to twenty years of imprisonment for each count, with a mandatory minimum term of five years on each count as a repeat offender, with the terms of imprisonment for Counts IX and XI to run concurrently with each other and consecutively to Count VI, with credit for time served.

We hold that the ICA did not gravely err in affirming the court's judgment because in Petitioner's case (1) under HRS § 706-606.5 (1985),mandatory minimum sentences must be imposed under specified conditions; (2) pursuant to HRS § 706-606.5, the court may run mandatory minimum sentences consecutively for multiple offenses; (3) mandatory minimum sentences imposed on repeat offenders pursuant to HRS § 706-606.5 are part of indeterminate maximum sentences; (4) HRS § 706-668 (Special Pamphlet 1975) requires that multiple sentences imposed by the court shall be served concurrently; (5) HRS § 706-606.5 does not conflict with HRS § 706-668 because the language of the latter may be construed as prohibiting consecutive term sentencing where multiple sentences of imprisonment are imposed at the same time, except that in certain situations such as those contemplated by the repeat offender provisions of HRS § 706-606.5, consecutive term sentencing is permitted; (6) assuming arguendo a conflict between HRS § 706-606.5 and HRS § 706-668 exists, repeat offenders must be sentenced in accordance with HRS § 706-606.5 because a specific statute controls over a general statute concerning a common matter; and (7) inasmuch as Petitioner was sentenced under HRS § 706-606.5 within the parameters described above, Petitioner's consecutive indeterminate maximum sentences do not constitute a violation of the due process and ex post facto provisions of the federal and Hawai‘i constitutions. [footnotes omitted]

Dissenting opinion by Moon, C.J. [pdf]. Dissenting opinion by Levinson, J. [pdf]

LOHER v. STATE

No. 27844 (July 14, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Petitioner-Appellant Frank O. Loher (Loher), aka Frank Loher, appeals the Order Denying Petition for Post-Conviction Relief, filed on March 16, 2006 in the Circuit Court of the First Circuit (Circuit Court).  The Circuit Court denied without a hearing Loher's Petition to Vacate, Set Aside, or Correct Judgment or to Release Prisoner from Custody, pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure (HRPP), filed on October 18, 2005 (Rule 40 Petition).  Loher raises numerous points of error.

. . . .

The Circuit Court's Order Denying Petition for Post-Conviction Relief, filed on March 16, 2006, is affirmed in part and vacated in part. This case is remanded for a HRPP Rule 40 hearing consistent with this opinion.  [footnote omitted]

STATE v. VIERRA

No. 27508 (June 25, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

Defendant-Appellant Mariann U. Vierra (Vierra) was sentenced as a persistent repeat offender of the offense of driving without a license (DWOL). Under HRS § 286-136(b) (Supp. 1996), "[a]ny person who is convicted" of DWOL is subject to an enhanced penalty "if the person has two or more prior convictions for the same offense in the preceding five[-]year period." This appeal turns on how to measure "the preceding five[-]year period" referred to in the statute. The pivotal question is: Should the statute be interpreted as measuring the preceding five-year period from the date the defendant committed the current DWOL offense or the date the defendant is sentenced on the current DWOL offense? We interpret the statute as measuring the five-year period based on the date the defendant committed the current DWOL offense. We therefore reject Vierra's argument that she did not have two or more prior DWOL convictions, and we affirm her sentences. [emphasis original]

Dissenting opinion by Foley, J. [pdf]

STATE OF HAWAI'I v. AKAU

No 26989 (May 30, 2008)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On February 8, 2008, this court accepted a timely application for a writ of certiorari, filed by petitioner/defendant-appellant Anthony Kalani Akau on January 8, 2008, requesting this court review the Intermediate Court of Appeals' (ICA) October 11, 2007 judgment on appeal, entered pursuant to its September 21, 2007 summary disposition order (SDO).  Therein, the ICA affirmed the Circuit Court of the First Circuit's October 15, 2004 judgment, convicting Akau of, and sentencing him for, -- pursuant to his conditional guilty plea --  three counts of promotion a dangerous drug in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1242 (1993 & Supp. 2003).  Oral argument was held on March 6, 2008.

. . . .

As discussed more fully infra, we hold that the ICA erred in affirming the circuit court's denial of Akau's motion to dismiss.  Accordingly, we reverse the ICA's October 11, 2007 judgment on appeal and the circuit court's October 15, 2004 judgment of conviction in the drug buy case. [footnotes omitted]

Dissenting opinion by Nakayama, J. [pdf], and concurring opinion by Acoba, J. [pdf]

STATE OF HAWAI'I v. BAYLY

No. 27954 (May 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Petitioner/Defendant-Appellant David H. Bayly seeks review of the October 11, 2007 judgment of the Intermediate Court of Appeals (ICA), which affirmed the district court of the second circuit's March 31, 2006 final judgment adjudging Bayly guilty of inattention to driving in violation of Hawai'i Revised Statutes (HRS) § 291-12 (Supp. 2006).  We accepted Bayly's application for a writ of certiorari and oral argument was held on April 17, 2008.

Bayly asserts that the ICA gravely erred in affirming his conviction because there was insufficient evidence to prove that he operated a vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property.

Based on the following, we reverse the ICA's judgment.  [footnote omitted]

STATE OF HAWAI'I v. SHANNON

No. 27919 (May 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Plaintiff-Appellee State of Hawai'i (Petitioner) seeks review of the October 17, 2007 Judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its published opinion filed on September 28, 2007, see State v. Shannon, 116 Hawai'i 38, 69 P.3d 990 (App. 2007), vacating the April 6, 2006 Judgment of the District Court of the First Circuit, Kaneohe Division (the court) revoking the Deferred Acceptance of Guilty Plea (DAGP) granted to Respondent/Defendant-Appellant Eric K. Shannon (Respondent) and convicting him of criminal trespass in the second degree, in violation of HRS § 706-815(a)(1) (1993).

We hold that (1) under HRS § 853-1 (1993 & Supp. 2007), referring to a DAGP, and incorporating HRS § 706-624 (1993 & Supp. 2007), pertaining to probation, the defendant must be given a written copy of the conditions imposed pursuant to his or her DAGP, (2) an "actual notice" rule such as that applied by federal courts cannot be validly substituted for the written notice required by our statutes, (3) Respondent was not given a written copy of his conditions, and, therefore, under State v. Lee, 10 Haw. App. 192, 862 P.2d 295 (1993), his DAGP could not be revoked by the court, (4) further, consistent with the written conditions requirement of HRS § 853-3 (1993) as it is construed with HRS § 706-627(1) (1993), a motion to revoke DAGP for failure to comply with its conditions must be in writing, (5) Petitioner did not file a written motion to revoke Respondent's DAGP, therefore, (a) Respondent's period of deferral was not tolled, and (b) the deferral period expired before the court ruled on the motion to revoke.  Accordingly, Respondent's DAGP could not be revoked and Petitioner's motion to revoke must be dismissed with prejudice.  Ultimately, then, the ICA did not gravely err in vacating the court's judgment.  See Shannon, 116 Hawai'i at 39, 69 P.3d at 991.  [footnotes omitted]

Dissenting opinion by Nakayama, J. [pdf]

STATE OF HAWAI'I v. SCHAEFER

Nos. 26916, 26917 (Apr. 30, 2008)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

In these consolidated appeals from judgments entered by the District Court of the Fifth Circuit (the district court) on October 1, 2004, Defendants-Appellants April Esther Schaefer (April), also known as April Ester Paiva, and Steven Schaefer (Steven) (collectively, Appellants) challenge, on several grounds, the sentences imposed against them following their convictions for nineteen misdemeanor offenses.

Since the record indicates that the district court failed to personally afford Steven and April an opportunity to make a statement prior to sentencing, we vacate their respective sentences and remand for resentencing before a different judge. We further instruct that on remand, the district court shall determine whether the pre-sentence investigation report (PSI) prepared for Steven and April, respectively, complied with the plea agreement that each entered into with Plaintiff-Appellee State of Hawai‘i (the State). If the district court determines that the plea agreement was materially breached, the district court shall determine the appropriate remedy for the breach. Our disposition of this appeal renders it unnecessary to address the remaining points raised on appeal by Appellants. [footnote omitted]

STATE OF HAWAI'I v. JESS

No. 28483 (March 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On October 6, 2004, the defendant-appellee Brian Jess filed a 28 U.S.C. § 2254 (1996) petition for a writ of habeas corpus in the United States District Court for the District of Hawai'i.  In his petition, Jess alleged that the extended term sentence that the circuit court of the first circuit, the Honorable Victoria S. Marks presiding, imposed upon him on May 7, 2001, pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661  (Supp. 1999), 706-662(1), 706-662(4)(a) (Supp. 1996), and 706-664 (1993) was, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, in violation of his right to a jury trial as provided by the sixth amendment to the United States Constitution.  See Jess v. Peyton, No. Civ. 04-00601 JMS/BMK, 2007 WL 1041737, at *1-*2 (D. Haw. April 18, 2006) (Jess II). On April 18, 2006, the United States District Court granted Jess' petition, concluding that the finding made by the circuit court, i.e., that an extended term was necessary for the protection of the public [hereinafter, "the necessity finding"], violated his sixth amendment right to a trial by jury as articulated in  Apprendi.  Id. at *4.  The district court ordered the circuit court to resentence Jess in a manner consistent with that conclusion.  Id. at *6.  The reserved question before this court stems, ultimately, from that order, and reads as follows:

May the trial court, as part of a sentencing proceeding brought pursuant to Section 706-662(1) & (4), H.R.S., empanel a jury to make a factual finding to determine whether the prosecution has proven beyond a reasonable doubt that the defendant's commitment for an extended term of incarceration is necessary for the protection of the public?

The issue raised by the reserved question was addressed in part in our recent decision in State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), [hereinafter "Maugaotega II"].  Based upon Magaotega II and the analysis infra, we answer the reserved question as follows:

Although the two-count complaint filed by the prosecution on March 2, 2000 against the defendant-appellee Brian Jess did not charge the "aggravated crimes" described in HRS § 706-662, see Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 864 (2007), the circuit court nevertheless has authority to impose extended terms of imprisonment upon Jess pursuant to the provisions  of HRS § 706-662, because our decision to require the allegation of aggravating extrinsic facts in a charging instrument applies prospectively only.  Furthermore, insofar as the circuit court possesses the inherent judicial authority "to provide process where none exists," State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 711012 (1982), and the legislature, by amending Hawaii's extended term sentencing laws to include jury fact-finding, has clearly expressed its approval of a jury system for making the required findings in order to bring the extended sentencing procedures into compliance with Cunningham, the circuit court would act within its discretion if, pursuant to HRS §§ 706-662(1) and 706-662(4) (Supp. 1996), it empaneled a jury to make a factual finding as to whether the prosecution has proved beyond a reasonable doubt that a defendant's commitment for an extended term or terms of imprisonment is necessary for the protection of the public.  Finally, in light of the plain language of Act 1, see supra notes 306, and the remedial nature of its amendments, the circuit court can also empanel a jury to make the same factual finding with respect to a defendant pursuant to HRS §§ 706-662, as amended by Act. 1.

[footnotes omitted]

Concurring and dissenting opinion by Nakayama, J. [pdf]; dissenting opinion by Acoba, J. [pdf]

STATE OF HAWAI'I v. MAINAAUPO

No. 27764 (March 5, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On December 7, 2007, the defendant-appellant-petitioner Mark K. Lopez filed an application for a writ of certiorari, urging us to review the memorandum opinion (mem. op.) of the Intermediate Court of Appeals (ICA) in State v. Lopez, No. 27969 [hereinafter, "ICA's Lopez mem. op."], and, on December 11, 2007, the defendant-appellant-petitioner William Mainaaupo, Jr., filed an application for a writ of certiorari, asking us to review the ICA's memorandum opinion in State v. Mainaaupo, No. 27764 [hereinafter, "ICA's Mainaaupo mem. op."].  Although these cases are factually unrelated, they share a common legal question:  Whether the ICA erred in concluding that the circuit court of the first circuit correctly declines to instruct the jury on the mistake-of-fact defense, as provided by Hawai'i Revised Statutes (HRS) § 702-218 (1993), in relation to charges of the offense of unauthorized control of a propelled vehicle, in violation of HRS § 708-836 (Supp. 2001), where the defendant claims a mistaken belief that the person who authorized his use of the vehicle was the registered owner of the vehicle.  Beyond this shared issue, Mainaaupo argues that the ICA gravely erred in concluding that the circuit court correctly instructed the jury that, under HRS § 708-836, the defendant had a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle.  And Lopez contends that the ICA gravely erred in concluding that the remarks made during closing argument by the plaintiff-appellee-respondent State of Hawai'i [hereinafter, "the prosecution"] regarded Lopez's post-arrest silence and his failure to produce a critical defense witness to corroborate his testimony were legitimate comment on the evidence and not misconduct.  We accepted Lopez's and Mainaaupo's applications on January 18, 2008 and consolidated the cases for disposition the same day.

. . . .

Accordingly, we vacate the judgments against Lopez and Mainaaupo and remand their cases for new trials.  [footnotes omitted]

Concurring and dissenting opinion by Acoba, J. [pdf]

STATE OF HAWAI'I v. GOMES

No. 27906 (February 20, 2008)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Keith Daniels Gomes (Petitioner) filed an application for writ of certiorari on October 31, 2007, seeking review of the judgment of the Intermediate Court of Appeals (ICA) filed on August 2, 2007, pursuant to its Summary Disposition Order (SDO) filed on July 11, 2007, affirming the March 28, 2006 judgment of the first circuit court (the court) in Cr. No. 05-1-1181, convicting Petitioner of bribery of a Witness, Hawai'i Revised Statutes (HRS)  § 710-1070 (1993), and sentencing him to five years' imprisonment.  We hold that the ICA erred in affirming the court's denial of Petitioner's motions for judgment of acquittal of the charge of bribery under HRS §  710-1070(1)(b) because even in viewing the evidence in the light most favorable to the prosecution, substantial evidence did not exist to support the jury's finding that Petitioner offered money to a potential witness with the intent to induce her to avoid service of process. [footnotes omitted]

Dissenting opinion by by Nakamura, J. [pdf]

STATE OF HAWAI'I v. FETELEE

January 31, 2008 (No. 27482)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On August 29, 2007, this court accepted a timely application for a writ of certiorari, filed by petitioner/defendant-appellant Faa P. Fetelee on July 17, 2007, requesting that this court review the May 17, 2007 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its April 18, 2007 published opinion in State v. Fetelee, 114 Hawai'i 151, 157 P.3d 590 (App. 2007).

. . . .

In light of our pronouncement today, we are compelled to vacate the ICA's May 17, 2007 judgment on appeal and the trial court's August 3, 2005 judgment of conviction and sentence, and remand the case to the trial court for a new trial consistent with this opinion.

Concurring opinion by Nakamura, J. [pdf]

STATE OF HAWAI'I v. CUTSINGER

January 30, 2008 (No. 28203)

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

The parties agree that pursuant to State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2007) (hereinafter, "Maugaotega II"), the extended term sentence imposed upon Defendant-Appellant Walter Lee Cutsinger (Cutsinger) must be vacated and the case remanded for resentencing.

. . . .

Accordingly, we remand the case for resentencing in accordance with Act 1.

STATE OF HAWAI'I v. ESPIRITU

January 28, 2008 (No. 27354)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Christopher K. Espiritu (Petitioner) filed an application for writ of certiorari on October 3, 2007, seeking review of the judgment of the Intermediate Court of Appeals (the ICA) filed on July 5, 2007, pursuant to its May 31, 2007 Summary Disposition Order (SDO) affirming the May 18, 2005 judgment of the Circuit Court of the Second Circuit (the court) convicting Petitioner of attempted murder in the second degree (Count 1), carrying or use of a firearm in the commission of a separate felony (Count 2) (Cr. No. 03-1-0635), and place to keep firearm (Count 3) (Cr. No. 02-1-0666), and sentencing him to concurrent terms of life imprisonment with the possibility of parole on Count 1, twenty years on Count 2, and ten years on Count 3. Respondent/Plaintiff-Appellee State of Hawai‘i (Respondent) did not file a memorandum in opposition. For the reasons stated herein, we affirm the ICA judgment in part, vacate the judgment in part, vacate the court's judgment in part, and remand for a new trial as to Counts 1 and 2. See supra note 3. [footnotes omitted]

Dissenting opinion by Nakayama, J. [pdf]

STATE OF HAWAI'I v. WHITAKER

December 31, 2007 (No. 26777)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

As a result of a claim made by Defendant-Appellant Hiram Whitaker (Whitaker) to AIG Hawai'i Insurance Company, Inc. (AIG), his automobile insurance carrier, in which he sought insurance benefits for vandalism damages to his car, Whitaker was indicted, convicted, and sentenced for Insurance Fraud in violation of Hawaii Revised Statutes (HRS) § 431:10C-307.7(a)(1) and (b)(2) (2005), and Attempted Theft in the Second Degree (Attempted Theft 2) in violation of HRS § 708-831(1)(b) (Supp. 2000) and HRS § 705-500 (1993). 

Whitaker now appeals from the judgment entered by the Circuit Court of the First Circuit (the circuit court) on July 27, 2004, alleging that the circuit court erroneously instructed the jury about the offenses with which he was charged.

We affirm. [footnotes omitted]

STATE OF HAWAI'I v. KLIE

December 27, 2007 (No. 27992)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On December 20, 2007, this court accepted a timely application for a writ of certiorari, filed by petitioner/defendant-appellants Thomas E. Klie, on December 4, 2007, requesting that this court review the September 5, 2007 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its July 19, 2007 summary disposition order.  Therein, the ICA affirmed the District Court of the First Circuit's May 19, 2006 judgment convicting Klie -- via his no contest plea -- of and sentencing him for the offense of street solicitation of prostitution, in violation of Hawai'i Revised Statutes (HRS) § 712-1207 (Supp. 2006), quoted infra, [hereinafter, street solicitation].

In his application, Klie essentially reasserts the sole argument made in his direct appeal, namely, that the district court erred in denying his motion for a deferred acceptance of no contest (DANC) plea, filed pursuant to HRS § 853-1 (1993), quoted infra.  Specifically, Klie contends that a DANC plea is available in street solicitation cases, and the district court, therefore, committed error in finding that it lacked the discretion to grant the motion.  Based on the discussion below, we hold that the ICA erred in concluding that the district court properly denied Klie's motion for a DANC plea.  Consequently, the May 19, 2006 judgment is vacated, and the case is remanded to the district court for reconsideration of Klie's motion consistent with this opinion. [footnote omitted]

STATE v. SPILLNER

December 24, 2007 (No. 27722)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On July 20, 277, the defendant-appellant-petitioner Michael Spillner filed an application for a writ of certiorari urging this court to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in State v. Spillner, No 27722 (Haw. App. Apr. 13, 2007) [hereinafter, "the ICA's SDO"], which affirmed the 'Ewa district court's January 4, 2006 judgments, the Honorable Valerie W.H. Chang presiding, convicting him of and sentencing him for one count each of driving while unlicensed, in violation of Hawai'i Revised Statutes (HRS) § 286-102 (1993 & Supp. 2002) (offense one), and driving without motor vehicle insurance, in violation of HRS § 431:10C-104 (Supp. 1997) (offense two).  In his application, Spillner asserts that the district court erred: (1) in denying his motion to suppress the fruits of the March 1, 2005 traffic stop, during which Honolulu Police Department Officer Arthur Takamiya cited Spillner for offenses one and two; and (2) in convicting him on the basis of illegally obtained evidence.  On August 21, 2007, this court granted Spillner's application and, on October 31, 2007, we heard oral argument.

For the reasons discussed herein, we conclude that Spillner's points of error are ultimately meritless and, therefore, affirm the ICA's April 24, 2007 judgment on appeal.

Dissenting opinion by Acoba, J. [pdf]

STATE OF HAWAI'I v. MADDOX

December 11, 2007 (No. 27523)

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

This case arises out of an altercation between Defendant-Appellant Mickey A. Maddox (Maddox) and Dale Mota (Mota).  Mota was the new boyfriend of Maddox's ex-girlfriend Jane Barton (Barton).  Maddox arrived unexpectedly at the residence shared by Barton and Mota late one evening, and a fight ensued between Maddox and Mota.  During the fight, Maddox stabbed Mota in the chest with the knife blade of a utility tool.  The knife blade penetrated very close to Mota's heart, but missed the heart as well as other important organs and vessels.  Maddox and Mota accused each other of being the initial aggressor and Maddox claimed self-defense.

Maddox was indicted on charges of first degree assault and first degree burglary.  After a jury trial, Maddox was found guilty as charged of first degree assault and guilty of the included offense of second degree criminal trespass.  Prior to sentencing, Plaintiff-Appellee State of Hawai'i (the State) file a motion for an extended term of imprisonment on the first degree assault charge, asserting that Maddox qualified as a persistent offender under Hawaii Revised Statutes (HRS) § 706-662(1) (Supp. 2003), because he had two or more prior convictions for felonies committed at different times while he was an adult, and as a multiple offender under HRS § 706-662(4) (Supp. 2003), because he was being sentenced while already under sentence of imprisonment for a felony.  The State also moved for a mandatory minimum period of imprisonment pursuant to HRS § 706-606.5 (Supp. 1999) based on Maddox's status as a repeat offender.

The Circuit Court of the Second Circuit (circuit court) granted the State's motions and sentenced Maddox to an extended term of twenty years of imprisonment and a mandatory minimum of three years and four months on the first degree assault conviction.

. . . .

We hold that there was insufficient evidence to prove that Mota's injury created a substantial risk of death and therefore vacate Maddox's conviction for first degree assault.  Because, however, there was ample evidence to prove that Maddox committed the lesser included offense of second degree assault, we remand the case with instructions that the circuit court enter a judgment of conviction on the lesser included offense.  We further hold that the circuit court erred in imposing an extended term of imprisonment and ordering the payment of restitution.  We remand the case for resentencing on the lesser included offense of second degree assault. [footnotes omitted]

STATE OF HAWAI'I v. YAMADA

December 6, 2007 (No. 27778)

Opinion [pdf]

OPINION OF THE COURT BY RECKTENWALD, C.J.

In the early morning hours of February 14, 2003, Nicholas Harukichi Kaneta (Kaneta) and his friend Quinton Yoza (Yoza), were robbed and severely beaten at the Diamond Head lookout by two male assailants, one of whom wielded a baseball bat.  Five weeks later, on March 21, 2003, Defendant-Appellant Kaleokalani Yamada (Yamada or Defendant) was arrested by police at the University of Hawai'i (U.H.) shortly after he and an unknown accomplice used a baseball bat to rob two tourists in the parking lot of the Honolulu Zoo.  Police used photographs taken of Yamada after his arrest to assemble a photographic array, which they showed to Kaneta, Yoza, and a witness to the Diamond Head incident.  Oliko Kamaola O'Kalani Rory Cookman (Cookman).  Yoza and Cookman identified Yamada as one of the perpetrators of that attack.

. . . .

Yamada now appeals from the January 25, 2006 Judgment of Conviction and Sentence of the circuit court.  Yamada contends that the circuit court abused its discretion by admitting evidence relating to his apprehension at U.H., as well as the photographs of the baseball bat.  Yamada also challenges the admission of the photographic array, the sufficiency of the evidence against him, and the conduct of the prosecutor in closing argument.  He further seeks reconsideration of the supreme court's decision to vacate the circuit court's grant of a new trial based on the sleeping juror.  For the reasons set forth below, we affirm the circuit court's judgment and sentence.

STATE OF HAWAI'I v. PLICHTA

November 30, 2007 (No. 27294)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

We accepted the plaintiff-appellant-petitioner James George Plichta's application for a writ of certiorari in order to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in State v. Plichta, No. 27294 (Haw. Ct. App. Nov. 30, 2006).  The ICA affirmed the judgment of the first circuit court, the Honorable Karl K. Sakamoto presiding, convicting Plichta of first degree unauthorized entry into a motor vehicle, in violation of Hawai'i Revised Statutes (HRS) § 708-836.5 (Supp. 1996) (Counts I & III), robbery in the first degree, in violation of HRS § 708-840(1)(b)(ii) (Supp. 1998) (Count II), robbery in the second degree, in violation of HRS § 708-841(1)(a) (1993) (Count IV), unauthorized control of a propelled vehicle, in violation of HRS § 708-836 (1993 & Supp. 2001) (Count V), and first degree assault against a law enforcement officer, in violation of HRS § 707-712.5(a)(a) (2003 Supp.) (Counts VII & VIII), all arising out of incidents occurring on August 1, 2003. 

. . .

Accordingly, the ICA committed no grave error in affirming the circuit court's April 12, 2005 judgment. [footnotes omitted]

Dissenting Opinion by Acoba, J., joined by Duffy, J. [pdf]

COULTER v. STATE

November 30, 2007 (No. 27025)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Petitioner Michael Edward Coulter seeks review of the Intermediate Court of Appeals' (ICA) January 22, 2007 judgment, which affirmed the circuit court of the first circuit's November 29, 2004 Findings of Fact, Conclusion of Law, and Order Denying Petition for Post-Conviction Relief.  We accepted Coulter's application for a writ of certiorari and vacate the judgment of the ICA.  [footnote omitted]

STATE v. HOLT

November 21, 2007 (No. 27924)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Duke W. Holt (Holt or Mr. Holt) appeals from the Judgment entered by the Circuit Court of the First Circuit (the circuit court) on April 27, 2006, convicting and sentencing him for Harassment by Stalking, in violation of Hawaii Revised Statutes (HRS) § 711-1106.5(1) (Supp. 2006).  We vacate the sentence portion of the Judgment and remand for resentencing. [footnotes omitted]

STATE v. OWENS

November 19, 2007 (No. 27714)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Charlie Owens, Jr. (Petitioner) filed an application for writ of certiorari on July 12, 2007, requesting that this court review the April 13, 2007 judgment of the Intermediate Court of Appeals (the ICA), issued pursuant to its February 5, 2007 opinion that affirmed the December 20, 2005 Revocation of Probation; Order of Resentencing of the Family Court of the First Circuit (the court), and its January 10 2006 Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Dismiss for Violation of Hawai'i Rules of Penal Procedure (HRPP) Rule 9, except that Conclusions of Law Nos. 1, 2, 4, and 5 were vacated because they were wrong.  State v. Owens, 113 Hawai'i 472, 477, 155 P.2d 655, 660 (App. 2007).   Petitioner's application was accepted on August 10, 2007, and oral argument was heard on October 31, 2007.

. . . .

We hold, respectfully, that the ICA's April 13, 2007 judgment issued pursuant to its February 5, 2007 opinion is reversed, because (1) HRPP Rule 9 requires Respondent to serve warrants in both pre-conviction and post-conviction contexts without unnecessary delay, (2) Respondent's delay of nearly five years in serving Petitioner with a bench warrant for his arrest amounted to an unnecessary delay under HRPP Rule 9 where Petitioner was available for service in the jurisdiction of this state over the period of  non-service, there was no evidence that Petitioner intentionally avoided service, and there was no evidence that attempts had been made by Respondent to serve Petitioner over the nearly five-year period, and (3) Respondent's duty to comply with HRPP Rule 9 in the service of the bench warrant is not excused by Petitioner's failure to obey a court order that resulted from the issuance of the bench warrant.  [footnotes omitted].

STATE v. BELTRAN

November 16, 2007 (No. 26096)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Marie Beltran (Petitioner) filed an application for writ of certiorari on July 31, 2007, requesting that this court review the judgment of the Intermediate Court of Appeals (the ICA) filed on May 3, 2007, pursuant to its April 5, 2007 published opinion vacating the November 10, 2003 judgment of the district court of the first circuit (the court) convicting Petitioner of Camping Without a Permit, and remanding the case to the court to determine the classification of the offense with which Petitioner was charged. State v. Keawemauhili, 114 Hawai‘i 100, 122, 157 P.3d 539, 561 (App. 2007). According to the ICA, the camping regulation involved was not constitutionally overbroad or vague and the offense is one of absolute or strict liability under Hawai‘i Revised Statutes (HRS) § 702-213 (1993). Id. at 118, 121, 122, 157 P.3d at 557, 560, 561. The ICA ordered that if the charge against Petitioner did not allege a negligent state of mind element, the court shall enter judgment for camping without a permit as a civil violation under HRS § 702-213(1). Id. at 118, 157 P.3d at 557. If, however, the charge included a negligent or higher state of mind, the court shall enter judgment as a criminal petty misdemeanor offense of camping without a permit under HRS § 702-213(2). Id. at 122, 157 P.3d at 561. We hold that the camping regulation involved is overbroad and vague and with all due respect, reverse the ICA's May 3, 2007 judgment and the November 10, 2003 judgment of the court.  [footnotes omitted]

WILTON v. STATE

November 13, 2007 (No. 27129)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Petitioner-Appellant Freedus W. Wilton, II (Petitioner) filed a petition for writ of certiorari on June 29, 2007.  Certiorari was accepted on August 7, 2007, and oral argument was held on October 17, 2007.

Petitioner seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on April 12, 2007, pursuant to its March 21, 2007 Summary Disposition Order (SDO), affirming the December 1, 2004 "Findings of Fact, Conclusions of Law, and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody," filed by the Circuit Court of the Second Circuit (the court).  Respondent did not file a memorandum in opposition.

We respectfully vacate the April 12, 2007 ICA judgment and the court's December 1, 2004 findings and conclusions and order, and remand for an evidentiary hearing under Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (2007) for the reasons stated herein.

STATE v. HEGGLAND

November 8, 2007 (No. 27755)

[pdf]

Per Curiam.  In this appeal, Plaintiff-Appellant State of Hawai'i (the State) challenges the sentence of probation that the Circuit Court of the Third Circuit (the circuit court) imposed on Defendant-Appellee Gregory Heggland (Heggland or Mr. Heggland) following Heggland's plea of guilty to Promotion a Dangerous Drug in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1243(1) (Supp. 2005), and Prohibited Acts Related to Drug Paraphernalia, in violation of HRS § 329-43.5(a) (1993).  During the proceedings below, the State moved to sentence Heggland to a mandatory minimum term of imprisonment of one year and eight months pursuant to HRS § 706-606-5 (1993 & Supp. 2004) on grounds that Heggland was a repeat offender, having committed the offense of Promoting a Dangerous Drug in the Third Degree on August 28, 2003, during the period "[w]ithin the maximum term of imprisonment possible after a prior felony conviction" in Colorado for Conspiracy to Commit Aggravated Robbery.  The circuit court denied the State's motion, concluding that the State failed to adduce sufficient evidence that Heggland was represented by counsel or waived his right to representation by counsel at the time of his prior conviction in Colorado. 

. . . .

We vacate the sentencing portion of the Judgment and remand for resentencing.  [footnotes omitted]

STATE v. LO

October 30, 2007 (No. 28775)

Opinion [pdf]

Per Curiam.  In this original proceeding, petitioner State of Hawai'i (the prosecution) petitions this court for a writ of mandamus directing respondent the Honorable David W. Lo, judge of the District Court of the First Circuit (the respondent judge), to vacate a pretrial order granting respondent Jack Miller's [hereinafter, defendant Miller] motion to compel discovery in State v. Miller, Case No. 1DTC-07-017133.  The prosecution contends that the respondent judge exceeded his lawful authority under Hawai'i Rules of Penal Procedure (HRPP) Rule 16(d) (200&), quoted infra, by compelling the prosecution to disclose to defendant Miller the calibration distances and calibration locations for the laser unit used to cite defendant Miller for excessive speeding, in violation of Hawai'i revised Statutes (HRS)  § 291C-105(a)(1) (Supp. 2006), quoted infra.

Based on the following, we hold that, because the calibration information falls within the ambit of HRPP rule 16(d), the respondent judge did not exceed his lawful authority and that, therefore, the prosecution is not entitled to mandamus relief.

STATE v. MURRAY

October 29, 2007 (No. 27549)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant James Murray (Petitioner) filed an application for writ of certiorari on April 27, 2007, requesting that this court review the February 6, 2007 judgment of the Intermediate Court of Appeal (the ICA), issued pursuant to its January 19, 2007 memorandum opinion, affirming the September 13, 2005 judgment of the family court of the second circuit (the court), convicting Petitioner of  Abuse of A Family Member or Household Member as a class C felony, HRS §§ 709-906(1) and (7) (Supp. 2006).

Respondent/Plaintiff-Appellee State of Hawai'i (Respondent) did not file a memorandum in opposition.

. . . .

Based on the foregoing, the ICA's February 6, 2007 judgment is reversed, the court's September 13, 2005 judgment is vacated, and the case is remanded to the court for a new trial.  [footnotes omitted]

Dissenting opinion by Nakayama, J. [pdf]