CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000396; CR. NO. 10-1-0819)
Shawn A. Luiz, for petitioner.
Sonja P. McCullen, for respondent
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
We hold, first, that proof that any part of an offense occurred on the island of Oahu is sufficient to establish venue in the first judicial circuit. Here, because several witnesses testified that the alleged Kidnapping committed by Petitioner/ Defendant-Appellant Bladesin-Isaiah Bailey (Petitioner) occurred on the island of Oahu, there was sufficient evidence to demonstrate that the first judicial circuit was the correct venue.
Second, we hold that Respondent-Plaintiff/Appellee State of Hawai'i (the State) must prove beyond a reasonable doubt that substantial bodily injury was caused by the defendant in order to disprove the mitigating defense that reduces the offense of Kidnapping, Hawai'i Revised Statutes (HRS) § 707-720(3) (Supp. 2008), from a Class A felony to a Class B felony,  because, inter alia, the victim was not suffering from substantial bodily injury when released.
Third, we hold that the State must only disprove one of the three elements of the Class B mitigating defense set forth in HRS § 707-702(3) beyond a reasonable doubt to establish that a defendant is not entitled to the defense. In other words, the State must establish beyond a reasonable doubt that a defendant did not voluntarily release the victim, or that the defendant caused serious or substantial bodily injury to the victim, or that the victim was not released in a safe place. In this case, Petitioner did not challenge the jury's special interrogatories finding that the victim was not voluntarily released, and that the victim was not released in a safe place. Hence, Petitioner was not entitled to the Class B mitigating defense.
For the reasons stated herein, the August 21, 2013 Judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its July 10, 2013 Summary Disposition Order (SDO), and the March 19, 2012 Judgment of Conviction and Sentence of the Circuit Court of the First Circuit (the court) are affirmed.
On the morning of May 15, 2010, Ezra Kualaau, (Complainant) contacted Andrew Rodriguez (Rodriguez) through several text messages and phone calls, to buy crack cocaine. After picking up Petitioner, the two defendants headed to Complainant's house in a white "Chevy" Impala. Complainant, wearing basketball shorts and no shirt or shoes, joined Petitioner and Rodriguez at a park across the street from his house. Complainant and his mother testified that their house was located on Ka'ahumanu Street in Waiau, on the island of O'ahu.
Rodriguez sat in the driver's seat, Petitioner in the front passenger's seat, and Complainant in the back seat. After noticing a police car pass by, Petitioner and Rodriguez "looked at each other and then Petitioner went to the trunk." Complainant then started "getting punched[, ]" and "whacked on the side of [his] head in [his] temple and then phased out." After getting punched the first time by Petitioner, Complainant testified that he fell onto his left side, at which time Petitioner continued to punch him a couple of more times. Rodriguez then got out of the car and handcuffed Complainant behind his back. Petitioner "grabbed [Complainant] at [his] ankles . . . and they took [him] to the trunk." They closed the trunk with Complainant inside and drove off.
Two witnesses, Renante Lagat (Renante) and his wife Melva Lagat (Melva), were driving on Komo Mai Drive past the Waiau Park and noticed a white car by itself and "saw two guys put an individual in the car[, ]" with his hands "bound" at his back. The individual "being thrown into the trunk of the car" was "[a] white male, fairly skinny" with "no shirt." Renante testified that "one of . . . the ones putting the person in the car" was "wearing a red shirt." Honolulu Police Department Officer Donn Manzano (Officer Manzano) also testified that he was patrolling the Pearl City area near Komo Mai Drive on the island of Oahu when he noticed a white vehicle in the parking lot of Waiau District Park.
While in the trunk, Complainant managed to remove his cell phone from his pocket, and texted his mother to tell her that he had been kidnapped. Complainant also called 911. At the end of a cul-de-sac street, the car stopped and the defendants took Complainant out of the trunk. A plastic bag and cloth were put over Complainant's head.
Complainant testified that after pulling him out of the trunk, the two defendants proceeded to walk him up a trail, "or not a trail, but bushes[, ]" during which he was "pushed over rocks, through bushes." Complainant further related that Petitioner threatened that Complainant was not to "make noise or I'm gonna put -- or I'm gonna shoot you." At the top of the trail, Petitioner and Rodriguez "sat [him] down and started punching [him] in the face" "multiple times" while the bag was still over Complainant's head, and he was still handcuffed behind [his] back. They then "shoved [Complainant] to the ground[, ] . . . ripped the bag off [his] face and ran off." Complainant, after hearing the car door slam, ran back down the trail to get help.
Officer Halama Wong (Officer Wong) was patrolling the Moanalua Valley area of Oahu when she was dispatched to Onipa'a Street, where Complainant had made a call to the police from a nearby house. When Officer Wong arrived, Complainant was handcuffed and crying, with "abrasions" on his face, chest, and back, as well as what appeared to be a swollen nose. According to Officer Wong, Complainant appeared frightened, and "had a hard time speaking."
Complainant was taken to Kaiser Moanalua Emergency Room by his mother, where he was examined by Dr. Saba Russell (Dr. Russell). During the examination, Dr. Russell observed "multiple contusions and abrasion throughout [Complainant's] extremities, the arms and legs, as well as the face." She also found that he had suffered a nasal bone fracture. The age of the fracture was indeterminable based on the X-ray. However, Dr. Russell opined that the swelling and bruising over the cheek and nose were consistent with characteristics of a new fracture.
While Complainant was being examined for his injuries, Officer Tay Deering (Officer Deering) was dispatched to a possible Kidnapping at Waiau District Park on the island of O'ahu, but, on the way, observed and stopped a white "Impala" on Salt Lake Boulevard. Officer Legaee Fatu (Officer Fatu), who was with Officer Deering at the time, identified Petitioner as the passenger in the car and noticed that he was wearing a red shirt. Officer Deering identified Rodriguez as the driver of the car. Both Officer Fatu and Officer Deering testified that neither Rodriguez nor Petitioner appeared to have any injuries, and neither complained of having any.
The State indicted Petitioner and Rodriguez on May 20, 2010 on one count of Kidnapping (Count I) and one count of Assault in the Second Degree (Count II):
COUNT I: On or about the 15th day of May, 2010, in the City and County of Honolulu, State of Hawai'i, [Rodriguez] and [Petitioner], did intentionally or knowingly restrain [Complainant], with intent to terrorize him, . . . thereby committing the offense of Kidnapping, in violation of Section . . . 707-720 (1) (e) of the [HRS].
COUNT II: On or about the 15th day of May, 2010, in the City and County of Honolulu, State of Hawai'i, [Rodriguez] and [Petitioner] did intentionally or knowingly cause substantial bodily injury to [Complainant], and/or did recklessly cause substantial bodily injury to [Complainant], thereby committing the offense of Assault in the Second Degree, in violation of Section 707-711(1) (a) and/or Section 707-711(b) of the [HRS].
(Emphases added.) Trial began on January 6, 2012. The witnesses called in the State's case were Complainant, Complainant's mother, Renante, Melva, Dr. Russell, and Officers Fatu, Deering, Wong, and Manzano.
At the close of the State's case, Petitioner moved the court for a judgement of acquittal. His argument was that the State failed to prove venue. The court denied Petitioner's motion. The following discussion occurred:
[Mr. Luiz (Counsel for Petitioner)]: Actually, the State never proved venue in this case. Not one witness from the beginning to the end ever testified that this occurred in the City and County of Honolulu. No witness was asked that. As a matter of fact, I kept track of all the witnesses who testified and each officer who testified was never asked if this occurred in the City and County of Honolulu . . . and because venue is absolutely essential that must be proven that this did in fact occur in the City and County of Honolulu and not the County of Maui, the County of Big Island. We [are] entitled to a directed verdict on all counts since the State rested without proving venue.
THE COURT: You know, my notes show that venue was-the venue question was asked of [Complainant] regarding him being in front of his house. And in addition, the venue question was asked of Officer Manzano regarding the Waiau District Park. I'm going to look at the evidence in light more favorable to the Government. I can take judicial notice, I think, of venue, and I do so. But looking at the evidence in the light most favorable to the Government and considering the jury's right to weigh credibility and draw all reasonable inferences of fact I believe a reasonable juror can conclude guilt beyond a reasonable doubt as to Kidnapping and the Assault II with regard to [Petitioner]
THE COURT: Let me just note that I'm looking at my notes with regard to the venue issue. The venue question was asked of Officer  Wong as to Onipa'a Street where [Complainant] was allegedly found ... I think there's a reasonable inference that that car never left this island, so venue was established. Okay. All right .
[Mr. Luiz]: . . . I never heard the question on City and County of Honolulu, I heard-
THE COURT: Well, it just has to be this island.
While Petitioner exercised his right not to testify, Rodriguez did testify. Rodriguez recounted that Complainant contacted him to buy drugs, but that he and Petitioner met Complainant in order to retrieve money that a friend claimed Complainant stole from her. Rodriguez admitted to handcuffing Complainant, putting him in the trunk, as well as driving to Moanalua with Complainant in the trunk of the car, because "that's where [Complainant] said the person who was holding the money was at." Moreover, Rodriguez testified that when he stopped the car and opened the trunk, Complainant jumped out of the trunk and ran into some neighbors' yard; Rodriguez also stated that at that point, he drove away. Rodriguez claimed that he did not place a bag over Complainant's head and he did not walk Complainant up a trail.
The court instructed the jury in relevant part as follows:
In Count 1, [Petitioner] is charged with the offense of Kidnapping.
There are three material element of the offense of [K]idnapping, each of which the prosecution must prove beyond a reasonable doubt.
1. That, on or about May 15, 2010, in the City and County of Honolulu, State of Hawai'i, [Petitioner] restrained [Complainant]; and
2. That [Petitioner] did so intentionally or knowingly; and
3. That [Petitioner] did so with the intent to terrorize [Complainant] .
In Count 2, [Petitioner] is charged with the offense of Assault in the Second Degree.
There are two material elements of the offense of Assault in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt.
1. That, on or about May 15, 2010, in the City and County of Honolulu, State of Hawai'i, [Petitioner] caused substantial ...