NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 11-1-1531)
Jon N. Ikenaga Chief Judge Deputy Public Defender for Defendant-Appellant
Loren J. Thomas Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee
Nakamura, C.J., and Fujise and Ginoza, JJ.
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Nikolaus Netter (Netter) by felony information with second-degree burglary, in violation of Hawaii Revised Statutes (HRS) § 708-811 (1993) The felony information charged that Netter "did intentionally enter unlawfully in a building, to wit, the Embassy Suites, situated at 201 Beachwalk Street, with intent to commit therein a crime against person or property rights . . . ." After a jury trial, Netter was found guilty as charged. The Circuit Court of the First Circuit (Circuit Court) originally sentenced Netter to probation for a term of five years under Hawai'i's Opportunity Probation Enforcement (HOPE) program, with special conditions that included one year of incarceration to run concurrently with any other sentence being served, with credit for time served and subject to early release to an appropriate drug/alcohol and/or mental health treatment program. On July 24, 2012, the Circuit Court filed an "Amended Judgment of Conviction and Probation Sentence" (Amended Judgment), which modified its original sentence by reducing the special condition of incarceration to 162 days.
The charge against Netter stemmed from his entering an Embassy Suites Hotel in Waikiki (Embassy Suites Hotel), accessing the fourth floor at a time when it was reserved for registered hotel guests, and eating food from a breakfast buffet which was only for registered hotel guests. Approximately five months before the charged incident, the security department for the Embassy Suites Hotel had issued a trespass warning to Netter based on his eating food from the fourth floor breakfast buffet without being a registered hotel guest. The trespass warning notified Netter that he was prohibited from entering the premises for a period of one year.
On appeal, Netter contends that the Circuit Court abused its discretion "in allowing the State to introduce the prior bad-act evidence that Netter had previously been issued a trespass warning from the Embassy Suites Hotel." We disagree and affirm the Circuit Court's Amended Judgment.
During the period relevant to this case, the Embassy Suites Hotel offered a complementary breakfast buffet that was limited to registered hotel guests. The breakfast buffet was served on the fourth floor, and access to that floor was generally restricted to hotel guests when breakfast was being served. There were signs in the area of the buffet that indicated that the buffet was for registered guests only.
On May 16, 2011, the security department for the Embassy Suites Hotel issued a trespass warning to Netter after he was observed eating at the breakfast buffet and falsely claimed that he was a registered hotel guest. The trespass warning notified Netter that he was prohibited for a period of one year "from entering and/or returning onto" the premises of the Embassy Suites Hotel. It further notified Netter that failure to comply with the warning "will result in your arrest and prosecution for criminal Tresspass[.]"
On October 25, 2011, Netter entered the Embassy Suites Hotel through the front entrance, went into an elevator, obtained access to the fourth floor, and was observed eating food from the breakfast buffet. After hotel security confirmed that Netter was not a registered guest, Netter was ...