NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CRIMINAL NO. 11-1-0149)
Emmanuel G. Guerrero for Defendant-Appellant.
Tracy Murakami Deputy Prosecuting Attorney, County of Kaua'i for Plaintiff-Appellee.
Foley, Presiding J., Reifurth and Ginoza, JJ.
Defendant-Appellant Kekoa J. K. Krueger (Krueger) appeals from the "Judgment of Conviction and Sentence" entered August 27, 2012 in the Circuit Court of the Fifth Circuit(circuit court). Krueger was convicted of Robbery in the Second Degree, Hawaii Revised Statutes (HRS) § 708-841 (1) (a) (1993 & Supp. 2012) (Robbery 2).
On appeal, Krueger contends:
(1) the Deputy Prosecuting Attorney (Prosecutor) engaged in a continuing course of misconduct, warranting reversal; and
(2) the circuit court erred when it amended the charge of Robbery in the First Degree, HRS § 708-840(1)(a) (1993 & Supp. 2012) (Robbery 1) to Robbery 2 and denied his motion for judgment of acquittal.
On April 28, 2011, Krueger was charged with Robbery 1 and Attempted Assault in the First Degree, pursuant to HRS §§ 705-500 (1993) and 707-710 (1993) . The charges arose from an incident that occurred in the early morning hours of April 6, 2011, in which Krueger and co-defendant Lurguial M. Counts (Counts) allegedly beat and robbed the Complaining Witness (CW). Counts pled guilty to Robbery 1 and Credit Card Theft. A third defendant, Niquitta Kilmer (Kilmer), testified for the state in exchange for total immunity.
Krueger went to trial on May 7, 2012. Four days later, the state rested its case and Krueger moved for judgment of acquittal. The circuit court denied the motion but amended the charges down to Robbery 2 and Attempted Assault in the Second Degree, HRS §§ 705-500 and 707-711 (Supp. 2012). On May 15,
2012, a jury found Krueger guilty of Robbery 2 and Attempted Assault in the Third Degree. The circuit court merged the Attempted Assault charge into the Robbery 2 charge and sentenced Krueger to ten years' imprisonment ...