This decision is published in table format in the Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. SPECIAL PROCEEDING PRISONER NO. 13-1-0018. CRIMINAL NO. 00-1-2103.
On the briefs: Cynthia A. Kagiwada, for Petitioner-Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for Respondent-Appellee.
Nakamura, C.J., Foley
and Leonard, JJ.
SUMMARY DISPOSITION ORDER
Petitioner-Appellant Sixto Manuel (Manuel) appeals from the " Order Dismissing and Denying Petitioner Sixto Manuel's Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Filed June 12, 2013)," entered October 24, 2013 in the Circuit Court of the First Circuit (circuit court).
On appeal, Manuel contends the circuit court erred in denying his Hawai'i Rules of Penal Procedure (HRPP) Rule 40 Petition for Post-Conviction Relief (Petition) because Manuel's previous appellate attorney provided ineffective assistance of counsel during Manuel's prior direct appeal to this court. Manuel contends that his appellate attorney was ineffective because he (1) failed to properly raise a claim challenging the circuit court's unanimity jury instruction and (2) failed to properly raise a claim challenging the sufficiency of evidence adduced to support Manuel's four count conviction for sexual assault in the third degree.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we concluded Manuel's appeal is without merit.
A. Unanimity Jury Instruction
In Manuel's Petition, he contends that his appellate counsel was ineffective for failing to properly challenge the circuit court's unanimity instruction during Manuel's trial. Manuel contends the circuit court's unanimity instruction was " insufficient to ensure that the jury unanimously agreed that [he] committed the same specific conduct for each of the individual counts that he was convicted."
When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.
State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006) (citations omitted). " [O]nce instructional error is demonstrated, [the appellate court] will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction." Id. at 337, 141 P.3d at 984.
Respondent-Appellee State of Hawai'i (State) charged Manuel with four counts of sexual assault in the third degree in violation of Hawaii Revised Statutes (HRS) § 707-732 (1) (b) (2013 Supp.) for touching the penises and buttocks of Minor #1 and Minor #2 (Counts 1, 2, 4, and 5). Because the prosecution in Manuel's trial did not elect a specific act to establish Manuel's charge of sexual assault in the third degree, the circuit court was required to give the jury an instruction that all twelve jurors must unanimously agree to the same criminal act so to support each count of Manuel's conviction.
See State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996) In Arceo, the Hawai'i Supreme Court determined that a unanimity ...