CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0001078; CR. NO. 10-1-1319)
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
We hold that Petitioner/Defendant-Appellant Anthony Santiago (Petitioner or Anthony Santiago) may not be convicted of both Robbery in the Second Degree, Hawai'i Revised Statutes (HRS) § 708-841 (Supp. 2013) (Count one), and Assault in the First Degree, HRS § 707-710 (1993) (Count two), inasmuch as (1) the element of infliction of severe bodily injury is common to both offenses, (2) the jury apparently relied on the same conduct of Petitioner to satisfy this element for both offenses, (3) the findings incorporated in the verdicts that Petitioner was reckless in inflicting severe bodily injury for the second degree robbery conviction but acted intentionally or knowingly in engaging in the same conduct for the first degree assault conviction were inconsistent, (4) consequently, pursuant to HRS § 701-109(1) (c) (1993),  Petitioner could not be convicted of both offenses.
We therefore reverse Petitioner's conviction of first degree assault but affirm Petitioner's conviction of second degree robbery because (1) the prosecution's final argument focused almost entirely on robbery, (2) there was sufficient evidence to convict Petitioner of second degree robbery, (3) affirming Petitioner's conviction of second degree robbery is consistent with the jury's verdict convicting Kaulana Akau (Akau) as an accomplice to the crime of robbery in the second degree, and (4) Petitioner is not prejudiced by this disposition inasmuch as the penalties for second degree robbery and first degree assault are the same.
Additionally, we hold that a specific unanimity instruction was not required in this case. Also, we conclude that Petitioner waived his argument that by instructing the jury solely on accomplice liability for Kaulana Akau (Akau), the Circuit Court of the First Circuit (the court) commented on the evidence in violation of Hawai'i Rules of Evidence (HRE) Rule 1102 (1993) .
On August 3, 2010, Petitioner was driving his Toyota truck through Waikiki, with Akau as a passenger. Petitioner agreed to give a ride to Brad Easterling (Complainant) and Complainant's friend, Dustin Hernandez (Hernandez). Petitioner did not know either one of them. Complainant and Hernandez rode in the bed of the truck. There are several different versions of the events that followed.
According to Complainant, he gave some marijuana to Petitioner during the ride. Upon reaching Complainant's destination, Complainant and Hernandez exited the truck. Complainant testified that he then shook hands first with Akau and then with Petitioner, both of whom were still in the truck. While shaking hands with Petitioner, Petitioner tightly grabbed Complainant's hand, Complainant dropped his skateboard, and someone took Complainant's backpack. Complainant testified that the truck then began moving and that he heard a person other than the driver, say, "take off." Complainant was then dragged for some distance and suffered serious abrasions or burns on his left arm, shoulder, hand, knee, and hip.
Akau testified that he did not see Complainant give marijuana to Petitioner during the ride. After reaching Complainant's destination, Complainant and Petitioner left the truck, but Akau did not recall Complainant shaking his hand. Akau saw Complainant give what looked like a "Ziploc" bag of marijuana to Petitioner while Complainant was standing outside of the driver's side door. Petitioner grabbed the bag and then accelerated. Akau denied seeing a backpack and did not say "take off."
According to Petitioner, Complainant did not give him any marijuana during the ride. Complainant did give him a small amount of marijuana after Complainant exited the truck. Petitioner shook hands with Complainant, but he "never pulled him" into the truck. Akau then asked Complainant if he had any marijuana for sale. At this point, Complainant was standing outside the front window of Petitioner's truck, on the driver's side. Complainant handed a Ziploc bag containing marijuana to Petitioner, which Complainant had removed from a Tupperware-type container. Petitioner handed the Ziploc to Akau, who examined it and then passed it back to Complainant.
Petitioner testified that Complainant and Akau were discussing quantity and price regarding marijuana when Petitioner received a text message from his girlfriend, which he answered. The next thing Petitioner knew, Complainant and Akau were struggling and Petitioner was being struck. Complainant reached into the truck for what Petitioner thought was Complainant's marijuana. Petitioner did not see a backpack and did not take a backpack from Complainant.
After separating Complainant and Akau, Petitioner "panicked" and drove away. After driving for some distance, Petitioner stopped at a stop sign. At that point, Akau "lunged over" Petitioner and "pulled fingers off the door." Petitioner had thought Complainant was still where he was when the car "took off."
Petitioner did not recall seeing a backpack. However, he had told the police that "if there was a backpack then [Akau] took it." Petitioner related that following the incident he thought that Akau "was trying to take [Complainant's marijuana] without paying for it."
Respondent/Plaintiff-Appellee the State of Hawai'i (Respondent) called the treating physician, Dr. Nip, who testified that Complainant had suffered "road burns" to his body. The burns were impregnated with asphalt, gravel, and dirt. Dr. Nip classified Complainant's injuries as third degree burns, or the most severe type of burn injury. Based on the degree of burn, Dr. Nip indicated in his report to the police that Complainant had suffered "serious bodily injury." During his testimony, Dr. Nip did not indicate any other basis for finding serious bodily injury. In Dr. Nip's opinion, Complainant suffered "permanent disfigurement" as a result of the burns.
On August 16, 2010, Petitioner was charged in a complaint in Count one with Robbery in the First Degree, HRS § 708-840(1)(a),  and in Count two with Assault in the First Degree, HRS § 707-710. The two counts against Petitioner read as follows:
COUNT I: On or about the 3rd day of August, 2010, in the City and County of Honolulu, State of Hawaii, ANTHONY SANTIAGO, while in the course of committing theft, did attempt to kill or intentionally or knowingly inflict or attempt to inflict serious bodily injury  upon Bradley Easterlinq, thereby committing the offense of Robbery in the First Degree, in violation of Section 708-840(1)(a) of the Hawaii Revised Statutes.
COUNT II: On or about the 3rd day of August, 2010, in the City and County of Honolulu, State of Hawaii, ANTHONY SANTIAGO did intentionally or knowingly cause serious bodily injury to Bradley Easterling, thereby committing the offense of Assault in the First Degree, in violation of Section 707-710 of the Hawai'i Revised Statutes.
Akau was charged in an indictment solely as an Accomplice to Robbery in the First Degree, HRS §§ 702-221(2) (c) (1993),  702-222 (1) (b) (1993),  and 708-840 (1) (a) . On February 15, 2011, the trials were consolidated.
On September 13, 2011, the court instructed the jury as to Petitioner, in pertinent part, as follows:
[I]n Count 1 . . ., [Petitioner] is charged with the offense of robbery in the first degree.
There are two material elements of the offense of robbery in the first degree, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about August 3, 2010, in the City and County of Honolulu, State of Hawaii, the defendant, Anthony Santiago, was in the course of committing theft; and
2. That, while doing so, [Petitioner] intentionally or knowingly inflicted or attempted to inflict serious bodily injury upon [Complainant].
A person commits theft if he obtains or exerts unauthorized control over the property of another with intent to deprive the person of the property.
An act shall be deemed in the course of committing theft if it occurs in an attempt to commit theft, in the commission of theft, or in the flight after the attempt or commission.
A person attempts to inflict serious bodily injury on another if, with the intent to inflict serious bodily injury, he intentionally engages in conduct which is a substantial step in a course of conduct intended or known by [Petitioner] to create a substantial risk of death or which causes serious, permanent ...