NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAR-2024
07:49 AM
Dkt. 57 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RAHEIM GAVIN, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)
A jury found Raheim Gavin guilty of Criminal Property
Damage in the First Degree. Gavin appeals from the "Judgment of
Conviction and Sentence" entered by the Circuit Court of the
First Circuit on February 7, 2023.1 He challenges the trial
court's (1) unanimity and elements instructions, (2) denial of
his motion for arrest of judgment, and (3) denial of his motion
for judgment of acquittal. We affirm.
(1) We review jury instructions de novo to decide
"whether, when read and considered as a whole, the instructions
given are prejudicially insufficient, erroneous, inconsistent or
misleading." State v. Getz, 131 Hawai#i 19, 26-27, 313 P.3d 708,
715-16 (2013).
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The Honorable Shirley M. Kawamura presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Gavin was charged with Criminal Property Damage in the
First Degree.
(1) A person commits the offense of criminal property
damage in the first degree if by means other than fire:
(a) The person intentionally or knowingly damages
property and thereby recklessly places another
person in danger of death or bodily injury[.]
Hawaii Revised Statutes (HRS) § 708-820 (2014).
Witnesses testified that Gavin damaged the roof, doors,
and rear windshield of a car, and that the rear windshield glass
shattered and landed on six-month old Child, who was sitting in a
car seat. Gavin's girlfriend was in the car. Gavin was upset at
her and wanted her to come out of the car, but she would not.
The responding police officer saw multiple dents on the rear
passenger door and roof and a shattered rear windshield, with
glass inside the car and on an infant car seat behind the
driver's seat. The officer also reported seeing family members
removing glass from Child's hair.
The trial court instructed the jury:
The Defendant, RAHEIM GAVIN, is charged with the
offense of Criminal Property Damage in the First Degree.
A person commits the offense of Criminal Property
Damage in the First Degree if by means other than fire, he
intentionally or knowingly damages property and thereby
recklessly places another person in danger of death or
bodily injury.
There are three material elements of the offense of
Criminal Property Damage in the First Degree, each of which
the prosecution must prove beyond a reasonable doubt.
These three elements are:
1. That, on or about November 6, 2021, in the City
and County of Honolulu, by means other than fire, the
Defendant, RAHEIM GAVIN, damaged property of another; and
2. That the Defendant, RAHEIM GAVIN, did so
intentionally or knowingly; and
3. That such conduct recklessly placed [Child] in
danger of death or bodily injury.
(Emphasis added.)
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Gavin argues this instruction was erroneous because
there was evidence of damage to the car roof, door, and rear
windshield, but only the shattered windshield could have placed
Child in danger of death or bodily injury. He wanted the conduct
element to state "damaged property, to wit, the rear windshield"
of the car.
The trial court also gave this unanimity instruction:
The law allows the introduction of evidence for the
purpose of showing that there is more than one act and/or
damage caused upon which proof of an element of an offense
may be based. In order for the prosecution to prove an
element, all twelve jurors must unanimously agree that the
same act and/or the same damage has been proved beyond a
reasonable doubt.
(Emphasis added.)
A unanimity instruction is given "to eliminate any
ambiguity that might infect the jury's deliberations respecting
the particular conduct in which the defendant is accused of
engaging and that allegedly constitutes the charged offense."
Getz, 131 Hawai#i at 25, 313 P.3d at 714 (citation omitted).
When read and considered as a whole, a reasonable jury would
understand that they all must agree there was one intentional or
knowing act by Gavin that recklessly placed Child in danger of
death or bodily injury. There was no instructional error.
(2) Gavin's motion for arrest of judgment challenged
the sufficiency of the charge. It was made after the jury found
him guilty as charged. We apply a liberal standard of review and
will vacate the conviction only if Gavin can show that: (1) the
charge cannot reasonably be construed to allege a crime; or
(2) he was prejudiced. See State v. Kauhane, 145 Hawai#i 362,
370, 452 P.3d 359, 367 (2019).
The felony information charged:
On or about November 6, 2021, in the City and County
of Honolulu, State of Hawaii, RAHEIM GAVIN, by means other
than fire, did intentionally or knowingly damage property
and thereby recklessly place [Child] in danger of death or
bodily injury, thereby committing the offense of Criminal
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Property Damage in the First Degree, in violation of Section
708-820(1)(a) of the Hawaii Revised Statutes.
The charge accurately reflected the elements of HRS
§ 708-820. Gavin doesn't argue he was prejudiced. The circuit
court did not err by denying Gavin's motion for arrest of
judgment.
(3) Gavin argues that his motion for judgment of
acquittal should have been granted because there was insufficient
evidence that he shattered the rear windshield by "a voluntary
act." He argues he shattered the glass in "a reflexive act"
after the car ran over his foot.
"In reviewing the legal sufficiency of the evidence on
appeal, the test is whether, viewing the evidence in the light
most favorable to the State, substantial evidence exists to
support the conclusion of the trier of fact." Getz, 131 Hawai#i
at 28, 313 P.3d at 717 (citation omitted). The eyewitness
testimony, viewed in the light most favorable to the State,
supports the jury's finding that Gavin intentionally or knowingly
damaged the car's rear windshield. The circuit court did not err
by denying Gavin's motion for judgment of acquittal.
For these reasons, the "Judgment of Conviction and
Sentence" entered on February 7, 2023, is affirmed.
DATED: Honolulu, Hawai#i, March 20, 2024.
On the briefs:
/s/ Katherine G. Leonard
Jason M. Kramberg, Acting Chief Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Loren J. Thomas, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
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