This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. CR. NO. 12-1-0571.
On the briefs: Brandon K. Flores, for Defendant-Appellant.
Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
By: Leonard, Presiding Judge, and Reifurth, J., with Ginoza, J., dissenting and concurring.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Ted DeOliveira (DeOliveira) appeals from a December 16, 2013 Judgment of Conviction and Sentence entered by the First Circuit Court (Circuit Court). DeOliveira was convicted of Burglary in the First Degree in violation of HRS § 708-810(1) (c) (2014) (Count I) and Assault in the Third Degree in violation of HRS § 707-712(1) (2014) (Count II). He was sentenced to ten years imprisonment with a mandatory minimum of three years and four months on Count I and thirty days imprisonment on Count II, sentences to run concurrently.
DeOliveira appeals only as to Count I, arguing that the Circuit Court erred when it: (1) failed to instruct the jury that it could not find DeOliveira guilty of Burglary in the First Degree based on his assault of Anne Angyal (Angyal), because Burglary in the First Degree requires the " intent" to commit a crime in the burgled building, and the State charged DeOliveira only with a reckless state of mind in Count II; (2) failed to provide the jury with a special verdict form asking, in the event that the jury found DeOliveira guilty of Burglary in the First Degree, that it indicate which underlying crime against a person or property rights it believed DeOliveira intended to commit; and (3) denied his motion for judgment of acquittal on Count I based on insufficient evidence.
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, we resolve DeOliveira's points of error as follows:
(1& 2) HRS § 708-810(1)(c) provides, in relevant part:
(1) A person commits the offense of burglary in the first degree if the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights, and:
.. . .
(c) The person recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.
Thus, to convict DeOliveira of Burglary in the First Degree, the jury had to find that DeOliveira intentionally entered or remained unlawfully in Angyal's residence " with intent to commit therein a crime against a person or against property rights." Id. " [T]he crime intended to be committed on the premises does not have to be committed in order to make the act of entering or remaining the crime of burglary, only the intent must be formed." State v. Robins, 66 Haw. 312, 314, 660 P.2d 39, 41 (1983). While proof that the underlying crime actually occurred may tend to show an intent to commit that crime, the State is not required to prove that the crime was completed in order to prove that the defendant had the intent to commit it. Additionally, " [a] burglary conviction. .. can be based upon a showing of intent to commit any crime. A showing of intent to commit some particular crime is not required." State v. Motta, 66 Haw. 89, 94, 657 P.2d 1019, 1022 (1983).
Here, the State argued two alternatives, i.e. DeOliveira intended to commit the theft of some recording equipment from Angyal's apartment or that he intended to assault Angyal. With regard to the latter, DeOliveira argues that because the State charged him in Count II under HRS § 707-711(1)(b) (2014) (" recklessly causes serious or substantial bodily injury to another" ), its theory was that he recklessly (rather than intentionally or knowingly) caused serious or substantial bodily injury to Angyal.
Thus, he contends, the Circuit Court should have instructed the jury that it could not find him guilty of First Degree Burglary based on his assault of Angyal, because First Degree Burglary requires that the defendant enter or remain unlawfully in a building " with intent to commit therein a crime[.]" In other words, because the State did not charge DeOliveira with " intentional" assault, his assault of Angyal could not have been the underlying intended crime supporting the burglary verdict. DeOliveira argues that, therefore, had the Circuit Court provided the requested instructions and verdict form, " if the jury replied that the basis [for the burglary] was the assault against Anne Angyal, the court could have acquitted Mr. DeOliveira on the burglary count because it would have been an inconsistent verdict. The fact that no such instructions nor verdict forms were given made the court's instructions insufficient and erroneous and allowed for inconsistent verdicts."
When faced with a claim that verdicts are inconsistent, the court must search for a reasonable way to read the verdicts as expressing a coherent view of the case, and must exhaust this effort before it is free to dismiss the jury's verdict and remand the case for a new trial. The consistency of the jury verdicts must be considered in light of the judge's instructions to the jury.
Carr v. Strode. 79 Hawai'i 475, 489, 904 P.2d 489, 503 (1995) (citation and internal quotation marks omitted).
The State argues that its theory was not that DeOliveira was reckless with respect to his conduct, but rather that he was reckless with respect to the degree of injury his conduct was likely to cause to Angyal. HRS § 702-206(3) (2014) differentiates between acting " recklessly" with respect to one's conduct and with respect to a result of that conduct. During the trial, the State argued that DeOliveira intended to hit Angyal, but that he was reckless as to the result of his conduct " when he consciously disregarded a substantial and unjustifiable risk that punching [Angyal] would cause [her injuries]." Accordingly, the State's decision to charge DeOliveira with a " reckless" state of mind under HRS § 707-711(1)(b) would not, as DeOliveira contends, produce an inconsistent verdict with respect to the burglary charge.
HRS § 702-208 (1993) provides in relevant part that " [w]hen the law provides that recklessness is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally or knowingly." " Since intent, knowledge, [and] recklessness. .. are in a descending order of culpability, this section establishes that it is only necessary to articulate the minimal basis of liability for the more serious bases to be implied. The proposition is essentially axiomatic." Commentary on HRS § 702-208 (internal quotation marks and footnote omitted).
State v. Holbron, 80 Hawai'i 27, 40, 904 P.2d 912, 925 (1995).
Thus, a jury's conviction need not rest, on the same state of mind charged by the prosecution, so long as the jury finds that the defendant possessed a state of mind reflecting no less culpability than that required under the statute and all the elements of the charge are satisfied. The jury in this case could have arrived at a guilty verdict on the assault charge based on a finding that DeOliveira possessed a knowing or intentional state of mind. Therefore, the jury instruction requested, that the jury could not find DeOliveira guilty of Burglary in the First Degree based on his assault of. Angyal, would have been inaccurate and/or misleading. Moreover, as noted above, the requisite intent is the " intent to commit therein a crime against a person or property rights", which may be independent of the crime, if any, actually committed therein.
DeOliveira further argues that a special verdict form was necessary to determine whether the jury based the burglary verdict on the assault, because if it had, the Circuit Court could have acquitted DeOliveira based on the inconsistency of ...