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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-MAY-2020
10:50 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
SCOTT BRIAN SMITH, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NO. 99-0325(2); S.P.P. NO. 17-1-0008(2))
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)
Petitioner-Appellant Scott Brian Smith (Smith) appeals
from the Findings of Fact, Conclusions of Law, and Judgment
Denying Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner from Custody, entered on December 12, 2017
(2017 Order Denying Relief), by the Circuit Court of the Second
Circuit (Circuit Court).1 On appeal, Smith argues the Circuit
Court erred when it denied his Petition to Vacate, Set Aside, or
Correct Judgment or to Release Petitioner for Custody (2017
Petition), which contended that his consecutive sentences were
1
The Honorable Peter T. Cahill presided.
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illegal, the omission of a jury instruction on merger deprived
him of a fair trial, and his appellate counsel's assistance was
ineffective.
I. BACKGROUND
In the underlying criminal case, after a jury trial,
Smith was convicted of: first-degree assault, as a lesser
included offense of second-degree attempted murder (Count 1);
first-degree terroristic threatening (Count 2); first-degree
sexual assault (Counts 3, 4, 5, and 6); kidnapping (Count 8); and
use of a deadly or dangerous weapon in the commission of a crime
(Count 9).2 The Circuit Court sentenced Smith to forty-five
years of imprisonment, imposing the following terms consecutive
to each other: (1) concurrent twenty-year terms for Counts 3, 4,
5, and 6; (2) a ten-year term for Count 1; (3) a ten-year term
for Count 8; and (4) concurrent five-year terms for Counts 2 and
9.3
On direct appeal, Smith argued, inter alia, that the
Circuit Court abused its discretion in sentencing him to
"extended terms" of imprisonment. State v. Smith, 106 Hawai#i
365, 369, 378, 105 P.3d 242, 246, 255 (App. 2004), cert. denied,
106 Hawai#i 477,
106 P.3d 1120 (2005) (Smith I). This court
noted the Circuit Court imposed consecutive, not extended, prison
terms, and that the consecutive terms were not an abuse of
discretion. Id. at 378-79,
105 P.3d at 255-56. Smith's
2
The Honorable Shackley F. Raffetto presided over the trial and
sentencing.
3
Smith's trial counsel did not request a jury instruction on merger
with respect to Count 1 and Count 8.
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appellate counsel did not make any argument regarding the lack of
a jury instruction for merged offenses.
On July 29, 2013, in S.P.P. No. 13-1-0008(2), Smith
filed a Petition to Vacate, Set Aside or Correct Judgment or to
Release Petitioner from Custody (2013 Petition) under Hawai#i
Rules of Penal Procedure (HRPP) Rule 40. Smith v. State, CAAP-
XX-XXXXXXX, 2015 WL 4608127, *1 (Haw. App. July 31, 2015) (SDO)
(Smith II). Smith's 2013 Petition argued, inter alia, that his
appellate counsel's assistance was ineffective because he failed
to "respond to the Hawaii Supreme Court when they wanted to hear
more," and failed to raise the following: (1) erroneous jury
instruction regarding reasonable doubt, (2) "violation of
discovery," and (3) ineffective assistance of trial counsel. On
November 7, 2013, the Circuit Court entered an order denying the
2013 Petition (2013 Order Denying Relief). Smith appealed, and
this court affirmed. Smith II,
2015 WL 4608127, at *2-*3.
On October 27, 2015, after this court entered a judgment on
appeal in CAAP-XX-XXXXXXX, but before the supreme court denied
certiorari, Smith filed a Motion to Recalculate Multiple Terms of
Imprisonment Mandated by Act 194 (Motion to Recalculate). Smith
v. State, CAAP-XX-XXXXXXX,
2017 WL 384096, *2 (Haw. App. Jan. 27,
2017) (SDO) (Smith III). The Motion to Recalculate sought relief
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under "Act 194"4 and requested, inter alia, an attorney to assist
him with his Act 194 claim. Id.
On November 3, 2015, the Circuit Court entered an order
stating, inter alia, it was "unable to ascertain whether it has
jurisdiction" because it did not know whether Smith filed for
certiorari from this court's judgment affirming the 2013 Order
Denying Petition (November 2015 Order). The Circuit Court denied
the Motion to Recalculate "without prejudice to the issue being
raised in the proper proceeding."
Thereafter, Smith filed a Motion for Direct Appeal of
Judgment by Peter T. Cahill on and only on Act 194 Recalculate
Multiple Terms of Imprisonment and or Reconsideration, which this
4
As discussed below in Section III.D., Act 194 of 2015 amended
Hawaii Revised Statutes (HRS) § 706-668.5. See Smith III, 2017 WL 384096, at
*2-*3. HRS § 706-668.5 provides:
§ 706-668.5 Multiple sentence of imprisonment.
(1) If multiple terms of imprisonment are imposed on
a defendant, whether at the same time or at different
times, or if a term of imprisonment is imposed on a
defendant who is already subject to an unexpired term
of imprisonment, the terms may run concurrently or
consecutively. Multiple terms of imprisonment run
concurrently unless the court orders or the statue
mandates that the terms run consecutively.
(2) The court, in determining whether the terms
imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in
section 706-606.
(3) For terms of imprisonment imposed prior to
June 18, 2008, the department of public safety shall
post written notice in all inmate housing units and
the facility library at each correctional facility for
a period of two months and send written notice to the
defendant no later than January 1, 2016, that shall
include but not be limited to:
(a) Notice that the department of public safety
may recalculate the multiple terms of imprisonment
imposed on the defendant; and
(b) Notice of the defendant's right to have
the court review the defendant's sentence.
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court construed as a notice of appeal from the November 2015
Order. On January 27, 2017, this court affirmed, stating the
Circuit Court did not err in finding that Smith's Motion to
Recalculate was improper, but noting that the Circuit Court could
have treated it as a new HRPP Rule 40 petition. However, as the
Circuit Court denied the motion without prejudice, and Smith
could file an HRPP Rule 40 petition raising a claim under Act
194, and given the "muddled record relating to his Act 194
claim," this court held that the circuit court did not err in
denying Smith's Motion to Recalculate without prejudice. Id.
On May 31, 2017, Smith filed the subject 2017 Petition,
which alleged four grounds for relief: (1) the Circuit Court's
imposition of consecutive sentences violated his right to a fair
trial, where the sentencing transcript and judgment "appear to be
in conflict," and the Circuit Court failed to consider all
statutory sentencing factors or state its reason for imposing
multiple consecutive sentences; (2) the Circuit Court improperly
"based the severity of sentencing on [Smith's] failure to take
responsibility and admit guilt"; (3) the Circuit Court failed to
instruct the jury on the possibility of merger regarding Count 1
and Count 8; and (4) appellate counsel was ineffective for
failing to raise issues regarding the omission of a merger
instruction and the Circuit Court's "penalizing [Smith] for the
court's lack of remorse perception[.]"
On December 12, 2017, the Circuit Court entered the
2017 Order Denying Relief, which denied the 2017 Petition without
a hearing. The Circuit Court concluded, inter alia, that:
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(1) Smith's claim regarding his consecutive sentences was already
ruled upon by this court and was without a trace of support in
the record or from other evidence; (2) Smith's claim that the
Circuit Court enhanced his penalty for refusing to admit guilt
was not colorable; (3) Smith's claim regarding the merger
instruction omission was waived and showed no colorable claim,
and (4) Smith's ineffective assistance of appellate counsel claim
was previously ruled upon and showed no colorable claim. The
Circuit Court also denied the State's request to correct Smith's
sentence, stating it was procedurally improper.
On December 22, 2017, Smith filed a motion for
reconsideration (Reconsideration Motion), which was also denied.
Smith timely filed a Notice of Appeal.
In addition, in the underlying criminal case, Cr. No.
99-0325(2), on December 27, 2017, Smith filed a "Motion to Review
Consecutive Sentence Under HRS § 706-668.5" (Motion to Review
Sentence), which contended that (1) he has a right to have his
sentence reviewed under HRS § 706-668.5, and (2) his consecutive
sentences are illegal because the sentencing court did not
adequately explain its rationale for imposing consecutive
sentences, as required by the supreme court in State v. Barrios,
139 Hawai#i 321, 389 P.3d 916 (2016). On November 21, 2018, the
Circuit Court entered Findings of Fact and Conclusions of Law on
Defendant's Motion to Review Consecutive Sentence (2018 Order re
Sentence), stating, inter alia, that Smith's kidnapping
conviction should have been an "A" felony based on the jury's
answered interrogatories. The 2018 Order re Sentence stated that
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Barrios does not retroactively apply to Smith's sentence;
however, "there are clear errors in the original sentence imposed
and the sentence is illegal because it was based on something
contrary to the jury's decision." The Circuit Court concluded
that Smith was entitled to seek relief in an HRPP Rule 40
proceeding and directed Smith's counsel to refile the Motion to
Review Sentence as an HRPP Rule 40 petition.
On January 2, 2019, Smith filed a Petition for HRPP
Rule 40 Relief under HRPP Rule 35 for an Illegal Sentence and/or
to Vacate, Set Aside, or Correct Judgment (2019 Petition) in
S.P.P. No. 19-1-0001(2). On March 20, 2019, the Circuit Court
granted the 2019 Petition (2019 Order Granting Relief), finding,
inter alia:
8. After jury trial, Smith was sentenced upon
convictions for: four counts of sexual assault in the first
degree ("A" felony, 20 year term); Assault 1 and
Kidnap[p]ing (each as "B" felony, 10 year term); and
Terroristic Threatening 1 and Use of a Deadly Weapon (each
"C" felony, five year term). There was an issue as to
whether the Kidnapping conviction was an "A" or "B" grade
conviction.
9. The trial court imposed multiple consecutive
sentences. [Smith] would serve all of the "A" felony charges
for sexual assault concurrently for a 20 year sentence. The
"B" felony charges of 10 years would be served consecutively
for 20 years. The trial court ruled that only the "A"
felony charges were concurrent, and all other charge levels
with respect to each other, were consecutive.
10. On the judgment, it provides the "C" felony
charges would be served concurrent for 5 years. The
kidnapping would be a "B" felony, and the two "B" felonies
would be consecutive to each other. Also, each of the
different grade level terms would be consecutive to each
other such that Defendant was given a 45 year sentence
(20+10+10+5).
11. The Kidnapping conviction should have been an "A"
felony because the jury answered interrogatories for the
kidnapping verdict answering yes to each question that
defendant did not release CW voluntarily; without serious or
substantial bodily injury; or in a safe place.
12. The court finds that there is an inconsistency
between the jury's findings and the trial verdict; the
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sentencing transcript and the judgment as to the grade of
the Kidnapping conviction; and application of consecutive
sentencing with regards to the "C" felonies and other
levels, depending upon whether the Kidnapping conviction was
an "A" felony, and/or there was only one "B" felony
conviction and only 10 years consecutive ( since there would
be only one grade level charge).
. . .
15. The court finds that the "B" kidnapping was
erroneous, and then when it was run consecutive to the other
"B" felony, such was a clear illegal sentence because
defendant was not found guilty of "B" felony kidnapping and
the sentence was based upon something other than the jury's
finding.
16. The Court finds that another inconsistency is if
Kidnapping was an "A" felony, whether it would be concurrent
like the other "A" felonies, such that it would change the
overall consecutive sentence (with only one "B" felony
providing only "one" 10 year term in that grade of offense ).
17. The Court finds that the trial court's sentence
at sentencing hearing, does not match the judgment entered
following conviction and the Court finds this sentence
illegal.
The Circuit Court concluded that because the jury found
the kidnapping conviction was a class A felony, and sentences for
class A felonies were to be concurrent with each other,
"[c]onsecutive sentencing between the different grade levels
would be 20 + 10 + 5, which is different than the 45 imposed by
the sentencing court." The Circuit Court held that Smith's
sentence was therefore illegal and that Smith should be
resentenced.
On May 2, 2019, the Circuit Court entered a Judgment;
Conviction and Sentence; Notice of Entry (2019 Judgment) in the
underlying criminal case, resentencing Smith as follows:
FINAL JUDGMENT AND SENTENCE OF THE COURT
TERM: TWENTY (20) YEARS, Counts Three-Six, and Eight
TEN (10) YEARS, Count One
FIVE (5) YEARS, Counts Two and Nine
Court ordered the following:
• Counts Three-Six and Eight to run concurrent to each
other.
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• Count One to run consecutive to Counts Two, Three-Six,
Eight and Nine.
• Counts Two and Nine to run concurrent to each other and
concurrent to Counts One, Three-Six and Eight.
• Mittimus to issue forthwith, with credit for time served.
• All conditions previously ordered to remain in full force
and effect. . . .
On July 1, 2019, Smith filed a notice of appeal from
the 2019 Judgment, which was filed in CAAP-XX-XXXXXXX.
The same day, Smith filed an HRPP Rule 35 Motion for
Reduction of Sentence (Motion for Reduction of Sentence), seeking
to reduce his sentence to concurrent sentencing for Count 1
because of his medical condition.5 On September 20, 2019, the
Circuit Court denied Smith's Motion for Reduction of Sentence.
Smith also filed an Amended Notice of Appeal from the 2019
Judgment and the Circuit Court's order denying Smith's Motion for
Reduction of Sentence.
II. POINTS OF ERROR
Smith raises three points of error in this appeal,
contending that: (1) the Circuit Court's denial of the 2017
Petition violated due process because the 2015 legislative
amendment to HRS § 706-668.5 provided him the right to a review
of his consecutive sentences; (2) his sentence is illegal because
"it does not track the verdict and judgment of conviction"6 and
the circuit court did not adequately state its reasons for
imposing consecutive sentences; and (3) the Circuit Court erred
5
Smith's counsel stated Smith "maxed out on all other charges at or
about June 23, 2019."
6
Smith argues that the sentencing court erroneously determined his
kidnapping conviction was a B felony when the jury interrogatories supported
an A felony, and the oral sentence differed from the judgment.
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when it rejected his claims that (a) his sentence appeared to be
an enhanced penalty for his refusal to admit guilt; (b) an
omission of a merger jury instruction violated his right to a
fair trial; and (c) he had ineffective assistance of appellate
counsel.
III. APPLICABLE STANDARDS OF REVIEW
Orders denying HRPP Rule 40 petitions are reviewed de
novo. Lewi v. State, 145 Hawai#i 333, 345, 452 P.3d 330, 342
(2019).
As a general rule, a hearing should be held on a Rule 40
petition for post-conviction relief where the petition
states a colorable claim. To establish a colorable claim,
the allegations of the petition must show that if taken as
true the facts alleged would change the verdict, however, a
petitioner's conclusions need not be regarded as true.
Where examination of the record of the trial court's
proceedings indicates that the petitioner's allegations show
no colorable claim, it is not error to deny the petition
without a hearing. The question on appeal of a denial of a
Rule 40 petition without a hearing is whether the trial
record indicates that Petitioner's application for relief
made such a showing of a colorable claim as to require a
hearing before the lower court.
Id. (citation omitted). We review a "circuit court's conclusions
of law de novo and findings of fact for clear error." De La
Garza v. State, 129 Hawai#i 429, 438,
302 P.3d 697, 706 (2013)
(citation and quotation marks omitted).
IV. DISCUSSION
A. Arguments Regarding Illegal Sentence
Smith's first two points of error, as well as part of
his third point of error, contend that his sentence was illegal,
for various reasons, and therefore he is entitled to relief.
However, we take judicial notice of the 2019 Order Granting
Relief, which concluded that Smith's sentence was illegal, and
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the 2019 Judgment, in which Smith was resentenced. See Hawai#i
Rules of Evidence Rule 201.
As the supreme court has held regarding mootness:
A case is moot if it has lost its character as a
present, live controversy of the kind that must exist if
courts are to avoid advisory opinions on abstract
propositions of law. The rule is one of the prudential
rules of judicial self-governance founded in concern about
the proper—and properly limited—role of the courts in a
democratic society. We have said the suit must remain alive
throughout the course of litigation to the moment of final
appellate disposition to escape the mootness bar.
Simply put, 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
(2007) (format altered).
Because the Circuit Court resentenced Smith, this court
can no longer grant effective relief regarding his arguments that
his original sentence is illegal, and they are therefore moot.
See, e.g., State v. Clement, CAAP-XX-XXXXXXX, 2015 WL 9315564,
*4, (Haw. App. Dec. 18, 2015) (SDO) (holding alleged infirmities
related to defendant's original minimum term hearing were moot,
where paroling authority held new minimum term hearing and
entered new minimum term order).
B. Merger
Smith argues that the Circuit Court erroneously
rejected his claim that the "omission of a necessary merger
instruction" violated his right to a fair trial. Smith argued in
the 2017 Petition that he was entitled to a jury instruction
regarding the possible merger of Count 1 (first-degree assault)
and Count 8 (kidnapping). The Circuit Court rejected Smith's
claim, as follows:
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14. In the underlying criminal case, Petitioner did
not request a merger instruction; all the jury instructions
were given by agreement. Therefore, Petitioner waived the
issue of a merger instruction, which is a challenge to the
validity of the conviction and not the sentence.
15. The Hawai#i Supreme Court found that Petitioner
completed the act of kidnapping when he first entered the
home and restrained the complainant in her bed. Any
subsequent restraint of the complainant which continued
throughout the sexual assault and assault, were not
necessary to the perpetration of the kidnapping.[ 7]
16. Therefore, Petitioner's claim is denied without a
hearing pursuant to HRPP Rule 40(g)(2), because this ground
is waived and shows no colorable claim.
Smith did not request a merger instruction at trial,
nor did he raise the issue on direct appeal or in the 2013
Petition. Thus, Smith's merger argument is arguably waived under
HRPP Rule 40(a)(3). Nevertheless, the supreme court has held
that it is plain error not to give a merger instruction where
there is a reasonable possibility that merger applies. State v.
Frisbee, 114 Hawai#i 76, 84, 156 P.3d 1182, 1190 (2007). HRPP
Rule 52(b) provides that "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought
to the attention of the court." In Grindling v. State, 144
Hawai#i 444, 452-53,
445 P.3d 25, 33-34 (2019), the supreme court
stated that HRPP Rule 52(b) may apply in an HRPP Rule 40
proceeding. Accordingly, we consider whether there is a
reasonable possibility that merger applies to Counts 1 and 8.
7
We have not found any appellate case regarding Smith that contains
the ruling in Paragraph 15. Paragraph 15 appears to refer to State v.
Horswill, 75 Haw. 152, 162,
857 P.2d 579, 584 (1993) ("Horswill completed the
act of kidnapping when he first entered the home and restrained Complainant in
her bed. Any subsequent restraint of Complainant, which continued throughout
the subsequent sexual assault and assault, was not necessary to the
perpetration of the kidnapping."), abrogated on other grounds as recognized by
State v. Pecpec, 127 Hawai#i 20, 34 n.19, 276 P.3d 589, 603 n.19 (2012).
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HRS § 701-109(1) (1993) provides:
§ 701-109 Method of prosecution when conduct
establishes an element of more than one offense.
(1) When the same conduct of a defendant may establish
an element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:
. . .
(e) The offense is defined as a continuing course
of conduct and the defendant's course of conduct
was uninterrupted, unless the law provides that
specific periods of conduct constitute separate
offenses.
HRS § 701-109(1)(e) "interposes a constraint on
multiple convictions arising from the same criminal conduct."
Frisbee, 114 Hawai#i at 80, 156 P.3d at 1186.
Whether a course of conduct gives rise to more than one
crime [within the meaning of HRS § 701–109(1)(e)] depends in
part on the intent and objective of the defendant. The test
to determine whether the defendant intended to commit more
than one offense is whether the evidence discloses one
general intent or discloses separate and distinct intents.
Where there is one intention, one general impulse, and one
plan, there is but one offense. All factual issues involved
in this determination must be decided by the trier of fact.
HRS § 701–109(1)(e), however, does not apply where a
defendant's actions constitute separate offenses under the
law.
Id. (quoting State v. Matias, 102 Hawai#i 300, 305, 75 P.3d 1191,
1196 (2003)) (emphasis added).
In State v. Hoopii, 68 Haw. 246,
710 P.2d 1193 (1985),
Hoopii was convicted of kidnapping, rape and sodomy, and he
claimed his kidnapping conviction was prohibited by, inter alia,
HRS § 701-109(1)(d). Id. at 250,
710 P.2d at 1196. The supreme
court disagreed, stating, inter alia, that "where a defendant in
the context of one criminal scheme or transaction commits several
acts independently violative of one or more statutes, he may be
punished for all of them if charges are properly consolidated by
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the State in one trial." Id. at 251,
710 P.2d at 1197 (citations
omitted). The Hoopii court stated that
In this case, Appellant committed and completed the
act of kidnapping at the moment he restrained the victim by
abducting her, putting her in his van and driving away. Any
restraint which continued throughout the subsequent rape and
sodomy was not necessary to the perpetration of the
kidnapping. Appellant would still be subject to prosecution
for kidnapping had he not continued to restrain the victim
throughout the rape and sodomy. Moreover, these later acts
themselves constituted separate and independent offenses.
Id. (internal citation omitted).
In State v. Hoey, 77 Hawai#i 17, 38 881 P.2d 504, 525
(1994), the supreme court held it is possible for kidnapping and
robbery charges to merge under HRS § 701-109(1)(e), where
"(1) there is but one intention, one general impulse, and one
plan, (2) the two offenses are part and parcel of a continuing
and uninterrupted course of conduct, and (3) the law does not
provide that specific periods of conduct constitute separate
offenses." The Hoey court analyzed the elements of the robbery
and kidnapping charges:
[A] robbery consists of a continuing course of conduct in
which a defendant, in the course of committing theft, is
armed with a dangerous instrument, uses force against the
victim, and the defendant's use of force is intended to
overcome the victim's physical resistance or physical power
of resistance. Such a course of conduct, depending on the
state of the record, may or may not encompass the material
elements of the form of kidnapping proscribed by HRS
§ 707–720(1)(c) (Supp. 1992), i.e., the intentional or
knowing restraint of another person with intent either to
facilitate the commission of a felony or flight after the
commission of the felony.
Id. (emphasis added).
The Hoey court concluded that based on the record, "the
question whether Hoey's kidnapping offense merged into the
robbery [offense] pursuant to HRS § 701-109(1)(e) is one of fact
that should have been submitted to the jury" and thus held the
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trial court erred in refusing a merger instruction. Id. at 38-
39, 881 P.2d at 525-26. While the court's analysis did not cite
specific trial testimony, the Opinion noted that Hoey confessed
before trial that: (1) Hoey and Chad Akimoto (Akimoto)lured the
victim into an arcade room; (2) Akimoto hit the victim, causing
her to fall, and bound her hands and feet; (3) Hoey
unsuccessfully tried to tape the victim's mouth, then partially
covered her head with a plastic bag; (4) Hoey and Akimoto took
the arcade's and the victim's money; and (5) Hoey then disabled
the telephone and locked the door. Id. at 22,
881 P.2d at 509.
In Frisbee, the supreme court explained that HRS § 701-
109(1)(e)'s application turns on whether offenses share the same
"charged conduct." 114 Hawai#i at 83, 156 P.3d at 1189. As an
example where offenses share the same conduct, the supreme court
discussed Matias, where the defendant was convicted under the
"place to keep firearms" statute and of ownership or possession
of a firearm by a felon.
Id. The Frisbee court explained that a
merger instruction was required because both offenses in Matias
"arose out of the same elemental 'conduct,' i.e., what the
defendant did with the object, namely, 'possessed' it."
Id.
(citation and brackets omitted).
In State v. Lavoie, CAAP-XX-XXXXXXX, 2018 WL 1905957,
*8-*9 (Haw. App. Apr. 23, 2018) (MOP), vacated, 145 Hawai#i 409,
453 P.3d 229 (2019), this court held that a merger instruction
was unnecessary for felon-in-possession and place-to-keep
charges, adopting a circuit court's analysis that the offenses
arose from separate and distinct facts: the defendant completed
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the felon-in-possession offense before he left his home on the
incident date, and he then committed the place-to-keep offense
when he loaded and transported the firearm. Id. The supreme
court rejected this analysis, stating, inter alia, that the jury
— not the circuit court — should have determined whether the
offenses were "factually separate and distinct and whether 'there
[was] but one intention, one general impulse, and one plan[.]
Trial courts are not tasked with making factual findings
regarding when each offense occurred or whether the defendant's
conduct constitutes 'an uninterrupted continuous course of
conduct'; the jury must make such determinations.'" Lavoie, 124
Hawai#i at 433,
453 P.3d at 253 (citation omitted).
Here, Smith was convicted of first-degree assault in
violation of HRS § 707-710 (1993),8 as a lesser included offense
of second-degree attempted murder (Count 1); and kidnapping in
violation of HRS § 707-720(1)(d) (1993)9 (Count 8). First-degree
assault is committed when a person "intentionally or knowingly
causes serious bodily injury to another person." HRS § 707-710.
8
HRS § 707-710 provides:
§ 707-710 Assault in the first degree. (1) A person
commits the offense of assault in the first degree if the
person intentionally or knowingly causes serious bodily
injury to another person.
(2) Assault in the first degree is a class B felony.
9
HRS § 707-720(1)(d) states:
§ 707-720 Kidnapping. (1) A person commits the offense
of kidnapping if the person intentionally or knowingly
restrains another person with intent to:
. . .
(d) Inflict bodily injury upon that person or subject
that person to a sexual offense[.]
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Kidnapping, as proscribed in HRS § 707-720(1)(d), prohibits
intentionally or knowingly restraining a person with intent to
"[i]nflict bodily injury upon that person or subject that person
to a sexual offense[.]"
The State argues that a merger instruction was
unnecessary, citing Hoopii, 68 Haw. 246,
710 P.2d 1193, and
Horswill,
75 Haw. 152,
857 P.2d 579. In Horswill, the supreme
court rejected Horswill's contention that his kidnapping, sex
assault and assault convictions violated HRS § 701-109(1)(a),10
stating "where two different criminal acts are at issue,
supported by different factual evidence, even though separated in
time by only a few seconds, one offense by definition cannot be
included in the other."
75 Haw. at 162,
857 P.2d at 584.
Horswill "completed the act of kidnapping when he first entered
the home and restrained Complainant in her bed. Any subsequent
restraint of Complainant, which continued throughout the
subsequent sexual assault and assault, was not necessary to the
perpetration of the kidnapping."
75 Haw. at 162,
857 P.2d at
584-85 (citations omitted).
The State contends that, similar to Hoopii and
Horswill, "the act of kidnapping was completed when Smith tackled
CW in the hallway and dragged her to the son's bedroom, which
occurred before he sliced CW with the knife and inflicted four
vaginal penetrations." The State argues that the kidnapping
charge was a "separate and independent criminal act from the
10
HRS § 701-109(1)(a) (1985) prohibits convictions of more than one
offense involving the same conduct if one offense is included in the other.
See also Horswill, 75 Haw. at 161-62,
857 P.2d at 584.
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assault in the first degree charge, supported by different
factual evidence, to allow conviction for both offenses."
However, as the supreme court held in Lavoie, the jury, not the
court, is to determine whether acts supporting each offense are
separate and distinct. Lavoie, 145 Hawai#i at 432, 453 P.3d at
252. Moreover, as discussed below, the trial record does not
appear to contain a clear delineation between the acts
constituting kidnapping and assault.
This court's Memorandum Opinion in State v. Carlton,
CAAP-XX-XXXXXXX, 2016 WL 3063684 (Haw. App. May 27, 2016) is
instructive. In Carlton, the court held that a merger
instruction was required for, inter alia, kidnapping and second-
degree assault charges.
Id. at *6-*8. The trial record showed:
(1) Carlton tried to grab CW's keys and cell phone; (2) CW
punched Carlton and put him in a chokehold; (3) two people hit CW
with baseball bats, knocking CW and Carlton to the ground;
(4) those two people and a third hit and kicked CW, causing him
to release Carlton; (5) while CW was being hit and kicked so he
could not get up, Carlton got up, the group grabbed CW's feet and
dragged him, and Carlton and another person tried to bind CW's
feet; (6) a person in the group poured gasoline on CW and tried
to light a match; and (7) Carlton and another person kicked CW in
the head.
Id. at *1-*2.
The court observed the assault count charged Carlton as
a principal and/or accomplice for causing bodily injury to CW
with a dangerous instrument, "to wit, a baseball bat," and that,
under certain circumstances, like if CW was knocked to the ground
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by one blow from the baseball bat, the conduct prohibited by the
assault statute would not be a "course of conduct crime," as the
offense would be committed without further action. Id. at *7
(citing Hoopii,
68 Haw. at 251,
710 P.2d at 1197). However, this
court rejected the State's contention that, because the baseball
bat assault took place before any act constituting kidnapping
occurred, the kidnapping and assault charges cannot merge.
Id.
This court noted the conduct element of kidnapping is
"restraint," and that the State's theory at trial was that the
restraint giving rise to the kidnapping charge was CW's inability
to stand up due to the physical attack and that the resulting
bruises were evidence of an intent to inflict bodily injury.
Id.
This court further stated the evidence suggested that, in
addition to being knocked down by the bat, CW was repeatedly
struck with the bat while on the ground. We thus concluded that
"it is not clear that the acts constituting the [k]idnapping were
separate and independent offenses from the assault with a
dangerous instrument," and that it was reasonably possible that
the jury convicted Carlton of kidnapping and assault based, in
part, on CW being struck with a baseball bat while on the ground,
and that there was one general intent.
Id. A merger instruction
was therefore required.
Id.
Here, while the State argues Smith "completed" the
kidnapping conduct before he cut her, the State's narrative at
trial did not delineate Smith's conduct giving rise to the
kidnapping and assault charges.
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In its opening statement, the prosecution stated, in
relevant part:
And without warning as [CW] sat next to her two-and-a-
half-year-old son on the couch, the defendant delivered a
reign of blows on [CW].
. . .
She tried to run for the telephone in . . . her
roommate's room, but he grabbed her by the legs, dragged her
down, turned her around and start[ed] slicing at her with a
utility knife[.]
. . .
He dragged her from the hallway to her son's room. In
that room he threw a towel at her, pointed out her wounds,
told her to take care of them.
. . .
He told her he would cut her from ear to ear. He told
her many, many things.
And he took her sexually, forcefully, repeatedly on
the floor of her child's room with the child in the room.
Telling her even that he was going to stick the knife in her
down there and cut her out down there.
At some point he collapsed in sleep or in drunkenness
on the floor with her in the corner where she was huddled
for all of those hours as he terrorized her. His hands
still around her to keep her from going.
When she heard him snoring, she thought this might be
the chance. She had tried at one point to run from the
room, and it didn't work out.
(Emphasis added).
CW testified at trial that, inter alia, Smith began
punching her without warning, and she ran toward her roommate's
room, but Smith tackled her in the hallway. Smith continued to
punch CW in her face and body as she lay on the floor. Smith
grabbed CW by the hair and dragged her down the hallway into
their son's bedroom. Smith continued to punch CW in the face,
then stopped and told her she had been cut, stating, "Look what
you made me do. You made me cut you." CW saw that her right
leg, right arm, and thumb were slashed. Although CW was not sure
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how Smith cut her, she saw Smith with a utility knife later that
night. Smith gave CW a towel to soak up the blood but continued
to berate her. For the next several hours, Smith kept CW in
their son's room, and he threatened to cut her "from ear to ear"
if she tried to leave. CW tried to escape once by lunging at
Smith and swinging at his face, but Smith forced her back to the
floor and kicked her in the face several times. Throughout the
night, Smith screamed at CW and would smack her in the head and
tell her to open her eyes. CW remained trapped in their son's
room the rest of the night, and after the sun came up, Smith
sexually assaulted her. Later that morning, CW was huddled in a
corner of the room, and Smith crawled over to her, put his head
in her lap, wrapped his arms around her legs, and fell asleep.
CW then ran away.
When discussing the kidnapping charge in closing
argument, the State mentioned Smith kicking CW, but it is unclear
whether the State contended Smith's kicks were part of his
restraint of CW or demonstrated his intent to further injure her:
Kidnapping: That he restrained [CW], and did so
intentionally or knowingly. And did so with the intent to
inflict bodily injury on her or subject her to sexual
assault in the first degree.
Clearly this happened. This woman was in this room
for eight hours. She ran out, cannot see, bleeding
everywhere, collapsed on a neighbor's floor, and she left
her baby. He kept her there. She wasn't there for her own
good time. And he did so intentionally or knowingly because
look at the room.
He kept her in that room and would not let her go.
And she told . . . you she tried at one point to escape.
She tried to rush him when she was by the closet door in the
bedroom. Tried to go for his eyes, tried to go for his groin.
And what he did he put her to the floor and he roundhouse
kicked her. He kept her there. And he did so with the intent
to inflict bodily injury on her or subject her to sexual
assault in the first degree.
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How do we know? Because he did it. He inflicted more
bodily injury on her in that room. He beat her up some more in
the room. . . .
Roundhouse kicking her, putting her up against the
wall and sexually assaulted her not once but five times[.]
(Emphasis added).
While the trial record contains evidence supporting
both kidnapping and first-degree assault charges, conduct giving
rise to the assault offense (e.g., Smith's kicking CW) could also
constitute the restraint element of the kidnapping offense. In
addition, it appears that kidnapping and first-degree assault may
be charged as continuous offenses. First, the statutes
proscribing first-degree assault and kidnapping do not prohibit
charging the offenses as a continuing offense. See HRS §§ 707-
710, 707-720(1)(d), 707-700. Second, the relevant element of
first-degree assault ("causes serious bodily injury") and
kidnapping ("restrains another") may constitute a continuous act
or series of acts. See State v. Apao, 95 Hawai#i 440, 448, 24
P.2d 32, 40 (2001) (stating, in examining whether a specific
unanimity instruction was required, "this court has previously
stated that, under certain circumstances, kidnapping would be an
example of a continuing offense.").
Based on the foregoing, Smith's conduct could establish
an element of kidnapping and first-degree assault, each of which
may be a course of conduct crime. Accordingly, the jury was
required to determine whether there was "one intention, one
general impulse, and one plan," and whether the two offenses
merged. Lavoie, 145 Hawai#i at 432, 453 P.3d at 252 (citing,
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inter alia, Hoey, 77 Hawai#i at 38, 881 P.2d at 525). Thus,
Smith was entitled to a merger instruction.
We conclude that the appropriate remedy for plain error
in failing to instruct the jury about possible merger of Counts 1
and 8 is not necessarily a new trial on these offenses. On
remand, the State may remedy the merger-instruction error by
dismissing one of the two counts that could potentially merge or,
if the State chooses, the State may retry Smith on both counts.
See State v. Padilla, 114 Hawai#i 507, 517, 164 P.3d 765, 775
(App. 2007).
IV. CONCLUSION
For the foregoing reasons, the Circuit Court's December
12, 2017 Order Denying Relief is vacated, and this case is
remanded to the Circuit Court for further proceedings consistent
with this Memorandum Opinion.11
DATED: Honolulu, Hawai#i, May 29, 2020.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Matthew S. Kohm,
for Petitioner-Appellant. /s/ Derrick H.M. Chan
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
County of Maui, Associate Judge
for Respondent-Appellee.
11
As Smith's contention that he received ineffective assistance of
appellate counsel was based on his arguments regarding his sentence and the
lack of a merger instruction for Counts 1 and 8, we need not address the
parties' arguments regarding ineffectiveness and/or waiver of Smith's
ineffective assistance of counsel claim.
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