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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-SEP-2023
07:47 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JOHN SING, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.)
Defendant-Appellant John Sing (Sing) appeals from the
Judgment of Conviction and Probation Sentence, entered by the
Circuit Court of the First Circuit on July 5, 2022. 1 Upon
careful review of the record and the briefs submitted by the
parties, and having given due consideration to the arguments
advanced and the issues raised, we affirm.
Sing was charged by felony indictment with one count
of Robbery in the Second Degree, in violation of Hawaii Revised
1 The Honorable James S. Kawashima presided over the jury trial,
and the Honorable Kevin T. Morikone presided over the sentencing.
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Statutes (HRS) § 708-841(1)(a) (2014), 2 and one count of
Harassment in violation of HRS § 711-1106(1)(a) (2014). Sing
pleaded guilty to the Harassment charge, and was sentenced to
thirty days of incarceration. His robbery charge proceeded to a
jury trial. 3
Sing raises three points of error on appeal. Sing
contends that: (1) the circuit court erred in instructing the
jury on the included offense of Attempted Robbery in the Second
Degree, pursuant to HRS §§ 705-500 (2014) and 708-841(1)(a)
(2014); (2) his conviction for Attempted Robbery in the Second
Degree is not supported by sufficient evidence; and (3) the
circuit court erred by not granting his motion for mistrial, or
issuing a curative instruction, following the prosecutor's
alleged violation during her opening statement, of the circuit
court's order granting Sing's motion in limine to exclude
evidence of, inter alia, video footage of Sing's behavior on the
night of his arrest.
2 Abraham Sionesini (Sionesini) was also charged, in the same
felony indictment, with violating HRS § 708-841(1)(a) (2014). In May 2021,
the circuit court granted Sing's motion to sever his charges from
Sionesini's. Sionesini is not a party to this appeal.
3 The felony indictment provided, with respect to the charge for
Robbery in the Second Degree,
COUNT 1: On or about November 18, 2019, in the City and
County of Honolulu, State of Hawaiʻi, ABRAHAM SIONESINI and
JOHN SING, while in the course of committing theft, did use
force against the person of Wesley Mau, a person who was
present, with the intent to overcome Wesley Mau's physical
resistance or physical power of resistance, thereby
committing the offense of Robbery in the Second Degree, in
violation of Section 708-841(1)(a) of the Hawaiʻi Revised
Statutes.
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We resolve Sing's contentions of error as follows:
(1) Sing contends first that the circuit court erred
by instructing the jury as to the included offense of Attempted
Robbery in the Second Degree. 4 "When jury instructions or the
omission thereof are at issue on appeal, the standard of review
is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading." State v. Kinnane, 79 Hawaiʻi 46,
49, 897 P.2d 973, 976 (1995) (citation and emphasis omitted).
The circuit court did not err in instructing the jury
as to Attempted Robbery in the Second Degree. The offense of
4 The circuit court read the following instruction to the jury,
with regard to Attempted Robbery in the Second Degree,
If and only if you find the defendant not guilty of
Robbery in the Second Degree, or you are unable to reach a
unanimous verdict as to this offense, then you must
consider whether the defendant is guilty or not guilty of
the included offense of Attempted Robbery in the Second
Degree.
A person commits the offense of Attempted Robbery in
the Second Degree if he intentionally engages in conduct
which, under the circumstances as he believes them to be,
constitutes a substantial step in the course of -- in a
course of conduct intended to culminate in his commission
of Robbery in the Second Degree.
There are two material elements of the offense of Attempted
Robbery in the Second Degree, each of which the prosecution must
prove beyond a reasonable doubt.
These two elements are:
1. That, on or about November 18, 2019, in the City
and County of Honolulu, State of Hawaii, the defendant
engaged in conduct which, under the circumstances as the
defendant believed them to be, was a substantial step in a
course of conduct intended by the defendant to culminate in
the commission of Robbery in the Second Degree; and
2. That the defendant engaged in such conduct
intentionally.
Conduct shall not be considered a substantial step
until it is strongly corroborative of the defendant's
intent to commit Robbery in the Second Degree.
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Attempted Robbery is an included offense of Robbery. See HRS §
701-109(4)(b) (Supp.2018) (an offense is included, inter alia,
when it "consists of an attempt to commit the offense charged or
to commit an offense otherwise included therein"). "[W]hen
there is a rational basis in the evidence for a verdict
acquitting the defendant of the offense charged and convicting
the defendant of the included offense," the jury must be
instructed on the included offense. State v. Martin, 146 Hawaiʻi
365, 387, 463 P.3d 1022, 1044 (2020), as corrected, (Apr. 23,
2020).
The offense of criminal attempt is set forth in HRS §
705-500. As relevant here, "[a] person is guilty of an attempt
to commit a crime if the person . . . Intentionally engages in
conduct which, under the circumstances as the person believes
them to be, constitutes a substantial step in a course of
conduct intended to culminate in the person's commission of the
crime." HRS § 705-500(1)(b). In order to be considered a
substantial step, the conduct must be "strongly corroborative of
the defendant's criminal intent." HRS § 705-500(3).
The record reflects that Sing approached Mau alongside
Sionesini, as Sionesini questioned Mau about his watch, and,
upon Mau's refusal to surrender the watch to Sionesini, Sing
punched Mau across the face. These actions support a jury's
reasonable finding that Sing intentionally engaged in conduct
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that, under the circumstances as he believed them to be,
constituted a substantial step in a course of conduct intended
to culminate in the commission of Robbery in the Second Degree.
There was a rational basis in the evidence for the jury to find
that Sing attempted to obtain or exert control over Mau's watch,
and thus to convict Sing of the included offense of Attempted
Robbery in the Second Degree.
We conclude that the circuit court did not err in
instructing the jury on the included offense of Attempted
Robbery in the Second Degree.
(2) Sing next contends that the record contains
insufficient evidence to support his conviction for Attempted
Robbery in the Second Degree. When reviewing the sufficiency of
evidence on appeal, the court applies the following standard of
review,
[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)
(citations omitted). "Substantial evidence" is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id.
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We conclude that there was sufficient evidence to
support the jury's finding that Sing attempted to commit theft
of Mau's watch, that he did so intentionally, and that he used
force during the attempt. The evidence supports that Sing and
Sionesini approached Mau, while Mau was seated on a bench in the
Waikīkī Triangle Park. Mau testified that Sing and Sionesini
approached him, "walking side by side," as Sionesini said, "I
want your watch. Your watch. Give me your watch." Mau
testified that Sionesini then once or twice "tried to put his
finger and then pull" at the watch band on Mau's wrist, while
Mau told him "no, you can't have my watch," and pulled his arm
away. Mau further testified that Sing was "watching" Sionesini.
Sing told Mau, "So what? You gonna call the police? You gonna
call the police?" at which time Sing punched him, with his fist,
"lightly across" the face.
Based on our examination of the record, we conclude
that there was substantial evidence to support the jury's
finding that Sing intentionally engaged in conduct which, under
the circumstances as he believed them to be, constituted a
substantial step in the course of conduct intended to culminate
in his commission of Robbery in the Second Degree. The jury
reasonably found, based on Mau's testimony, that Sing's punch
constituted force intended to overcome Mau's physical resistance
or physical power of resistance that occurred as part of the
course of conduct by which Sing, together with Sionesini,
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attempted to obtain or exert unauthorized control over Mau's
watch. State v. Teale, 139 Hawaiʻi 351, 359, 390 P.3d 1238, 1246
(2017) ("[I]n reviewing the sufficiency of the evidence to
support the conviction the appellate court must take that view
of the evidence with inferences reasonably and justifiably to be
drawn therefrom most favorable to the Government, without
weighing the evidence or determining the credibility of the
witnesses.") (citation omitted).
Viewing the evidence in the strongest light for the
prosecution, we conclude that the record contained substantial
evidence to support Sing's conviction for Attempted Robbery in
the Second Degree.
(3) Sing contends, as his final point of error, that
the circuit court erred in denying his motion for a mistrial.
"The denial of a motion for mistrial is within the sound
discretion of the trial court and will not be upset absent a
clear abuse of discretion." State v. Rogan, 91 Hawaiʻi 405, 411,
984 P.2d 1231, 1237 (1999). "The trial court abuses its
discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant."
Id. (citations
omitted).
Sing alleged below, as a basis for mistrial, that the
State violated the circuit court's order granting Sing's motion
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in limine, 5 when the prosecutor made two sets of remarks during
opening statements in apparent reference to an officer's
observation, based on closed-circuit television (CCTV) footage,
of Sing's demeanor on the night of the alleged robbery attempt,
as follows:
That night Officer Osborne was monitoring the CCTV monitors
and what caught her attention, she saw two men in the
monitors in the area right next to McDonald's, which is on
Kuhio just maybe one block Diamond Head of the Hyatt Hotel,
you know, those two towers. And what she saw is two men,
one in a black T-shirt, black shorts, the other in a red T-
shirt, red shorts, having a face off with another
individual. That caught her attention, these two men who
seemed to have an aggressive stance with another person.
. . .
You'll hear from the officers at the scene. That's Officer
Osborne who will describe how the defendant acted that
evening, that he was belligerent, that he did not follow
instructions.
The record reflects that Sing objected to the prosecutor's
remark that Sing was "belligerent, that he did not follow
instructions" and the circuit court sustained the objection. 6
The prosecutor's alleged misconduct was confined to these
statements, and Sing makes no further allegations of
prosecutorial misconduct.
The circuit court, after the jury was excused on the
day opening statements were presented, further addressed the
5 The circuit court granted Sing's motion in limine to exclude,
inter alia, video evidence of Sing's behavior on the night of his arrest.
6 Sing contends that his objection to the prosecutor's first set of
remarks, regarding the "two men who seemed to have an aggressive stance with
another person," was lodged with the court, though that objection is not
reflected in the transcript.
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matter of Sing's allegation of prosecutorial misconduct, and
clarified the scope of his order granting the motion in limine,
I just wanted to address the objection issue because I
don't think I was -- I was not clear on this point. When I
said that the State was kept -- was supposed to keep out
the video for the 404(b) versus 404(a) considerations, I
didn't extend that to everything about the belligerence
later, but I am now, because I feel that defense's
objections regarding the 404(a) evidence i.e., the idea
that they're belligerent is character evidence that usually
keep -- we keep out of in a 404(a) and is not sufficiently
idiosyncratic to satisfy an exception under 404(b), so
that's why I sustained that objection. And that is my
ruling going forward to the rest of the trial.
After the circuit court made this clarification, Sing
moved for a mistrial, contending that the State's opening
statement violated the order granting Sing's motions in limine.
The circuit court responded that "[m]otion for mistrial is
lodged but denied," because the prosecutor's statement did not
"rise[] to the level of requiring a mistrial, especially if as
we proceed forward no evidence of that sort is adduced."
The circuit court further expressed that a curative
instruction might not serve to cure the harm as intended,
I have the general instruction that opening statements
aren't evidence. If I were to issue a limiting instruction
after that, in my mind that would draw attention to it in a
way that would not necessarily cure the harm. It would, as
a practical matter, draw attention to it.
The opening statement said, after this evidence will
be presented. It's going to be two days till that happens.
And the key evidence will be Mr. Mau's testimony. Once
that's out of the way, I don't see that there's a necessity
for it, so I'm not going to issue a curative instruction.
Your objection is noted, as is your motion for mistrial
lodged and we'll take it from there.
We conclude that the circuit court did not abuse its
discretion in denying Sing's motion for a mistrial, or in
declining to issue a curative instruction. The circuit court
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instructed the jury that counsels' opening statement remarks are
not evidence, and the jury is presumed to have followed the
circuit court's instructions. State v. Hauge, 103 Hawaiʻi 38,
59, 79 P.3d 131, 152 (2003), as corrected, (Nov. 26, 2003).
("This court has repeatedly adhered to the construct that the
jury is presumed to have followed the circuit court's
instructions.") (cleaned up). The prosecutor's remarks, which
were confined to two brief references to Sing's alleged
behavior, did not deny Sing his right to a fair trial. The
circuit court did not err in declining to issue a curative
instruction.
For the foregoing reasons, the Circuit Court of the
First Circuit's Judgment of Conviction and Probation Sentence,
entered on July 5, 2022, is affirmed.
DATED: Honolulu, Hawai‘i, September 1, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Daniel Kawamoto, Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge
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