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State v. DeOliveira

Intermediate Court of Appeals of Hawai'i

February 25, 2015

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
TED DEOLIVEIRA, Defendant-Appellant

Editorial Note:

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).[1] 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.[2] 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.

Additionally,

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 the burglary and assault verdicts. The supreme court has held:

When the evidence indicates that several distinct criminal acts have been committed, but [the] defendant is charged with only one count of criminal conduct, jury unanimity must be protected.. .. The [prosecution] may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the [prosecution] chooses not to elect, this jury instruction must be given to ensure the jury's understanding of the unanimity requirement.

State v. Mahoe, 89 Hawai'i 284, 291, 972 P.2d 287, 294 (1998) (brackets in original) (quoting State v. Arceo, 84 Hawai'i 1, 31, 928 P.2d 843, 873 (1996)).

Here, the Circuit Court gave the following unanimity instruction to the jury:

The law allows the introduction of evidence for the purpose of showing that there is more than one intent upon which proof of an element of an offense may be based. In order for the Prosecution to prove an element, all twelve jurors must unanimously agree that the same intent has been proved beyond a reasonable doubt.

This instruction was sufficient to ensure that all twelve jurors agreed that DeOliveira possessed the requisite intent to commit " a crime against a person or against property rights."

Finally, DeOliveira also argues that, with respect to Count II, the Circuit Court should not have instructed the jury on the lesser included offense of Assault in the Third Degree by mutual affray because mutual affray requires mutual consent, which is inconsistent with the reckless state of mind charged in Count II, and further confuses the requisite intent required in Count I. However, while Assault in the Third Degree is a lesser included offense of Assault in the Second Degree, as the supreme court has explained:

mutual affray, HRS § 707-712(2), is not a lesser included offense of Assault in the Third Degree, but rather, a mitigating defense to Misdemeanor Assault in the Third Degree.. . .
Hawai'i Jury Instructions Criminal (HAWJIC) 9.21 relating to mutual affray Assault in the Third Degree states that " [w] hen an Assault in the Third Degree instruction is submitted to the jury, the court must also submit a mutual affray instruction and special interrogatory where there is any evidence that the fight or scuffle was entered into by mutual consent." (Emphasis added.) Accordingly, we hold that the court must submit a mutual affray instruction to the jury where there is any evidence in the record that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent, as indicated in HAWJIC 9.21.

State v. Kikuta, 125 Hawai'i 78, 95-96, 253 P.3d 639, 656-57 (2011) (footnote omitted). DeOliveira argues that the " mutual consent" required for the jury to find that " mutual affray" mitigation applied is inconsistent with the reckless state of mind alleged in the original Assault in the Second Degree charge. However, as discussed supra,

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."

Holbron, 80 Hawai'i at 40, 904 P.2d at 925.

In the instant case, the Circuit Court gave an instruction that the jury could alternatively find DeOliveira guilty in Count II of the lesser included offense of Assault in the Third Degree. Because there was some evidence in the record that the injury to Angyal occurred in the course of a fight or scuffle entered into by mutual consent, the Circuit Court correctly instructed the jury on the mitigating defense of mutual affray. Id. at 40, 904 P.2d at 925. The jury found that the State had failed to prove beyond a reasonable doubt that DeOliveira and Angyal did not enter into a scuffle by mutual consent. We find no error in this regard, and for the same reasons articulated above, do not find this verdict to be inconsistent with the jury's verdict on Count I.

We conclude that the Circuit Court's refusal to provide the requested jury instructions and/or special verdict form was not prejudicially insufficient, erroneous, inconsistent, or misleading. State v. Walton. 133 Hawai'i 66, 83, 324 P.3d 876, 893 (2014). Thus, the Circuit Court did not err.

(3) DeOliveira argues that the Circuit Court erred in denying his motion for judgment of acquittal on the Burglary in the First Degree charge in Count I because there was insufficient evidence of his intent to commit a crime upon entering or remaining unlawfully in Angyal's residence. However, viewing the evidence in the light most favorable to the State, and in full recognition of the province of the trier of fact, there was sufficient evidence to support a prima facie case so that a reasonable mind might have fairly concluded DeOliveira's guilt beyond a reasonable doubt. See State v. Foster, 128 Hawai'i 18, 25, 282 P.3d 560, 567 (2012). Thus, the Circuit Court did not err when it denied DeOliveira's motion for judgment of acquittal as to Count I.

For these reasons, the Circuit Court's December 16, 2013 Judgment of Conviction and Sentence is affirmed

CONCUR BY: Lisa M. Ginoza

DISSENTING AND CONCURRING OPINION

GINOZA, J.

I respectfully dissent from the majority opinion in regard to Defendant-Appellant Ted DeOliveira's (DeOliveira) point of error involving the jury instructions in this case. In light of the charges as alleged by Plaintiff-Appellee State of Hawai'i (State), the proceedings below, and the record, I conclude that the jury instructions were insufficient and that there is a reasonable possibility that the instructional error may have contributed to DeOliveira's conviction for Burglary in the First Degree (Burglary I) under Hawaii Revised Statutes (HRS) § 708-810 (1) (c) (2014).

The following standard applies with regard to appellate review of jury instructions:

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. However, error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.

State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006) (citations, brackets and block format omitted).

The State's Complaint against DeOliveira alleged two counts: (1) Burglary I; and (2) Assault in the Second Degree (Assault II), in violation of HRS § 707-711(1)(b) (2014). For the Burglary I charge, the State alleged that:

On or about the 7th day of April, 2 012, in the City and County of Honolulu, State of Hawaii, TED DEOLIVEIRA did intentionally enter unlawfully in a building, to wit, the residence of Anne Angyal. .. with intent to commit therein a crime against a person or property rights, and did recklessly disregard the risk that the building was the dwelling of another, and the building is such a dwelling, thereby committing the offense of Burglary in the First Degree, in violation of Section 708-810(1)(c) of the Hawaii Revised Statutes.

( Emphasis added.)[1] For the Assault II charge, the State charged DeOliveira as follows:

On or about the 7th day of April, 2012, in the City and County of Honolulu, State of Hawaii, TED DEOLIVEIRA did recklessly cause substantial bodily injury to Anne Angyal, thereby committing the offense of Assault in the Second Degree, in violation of Section 707-711(1)(b) of the Hawaii Revised Statutes.

( Emphasis added.) Under HRS § 707-711(1), when substantial bodily injury is alleged, the State can allege the defendant caused such injury intentionally, knowingly, or recklessly.[2] The State chose to charge the assault in this case using the " reckless" standard.

DeOliveira argued below and contends on appeal that the Circuit Court should have instructed the jury that, because Burglary I requires the " intent to commit therein a crime, " HRS § 708-810(1) (emphasis added), the jury could not find him guilty of Burglary I based on the accompanying assault charge, which the State charged as Assault II only under a reckless state of mind.

The State's position is that the manner in which it charged the Assault IT is consistent with its theory of the case, i.e. that DeOliveira intended to cause bodily injury to Angyal, but was reckless with regard to the degree of injury Angyal actually suffered.

The majority concludes that the Circuit Court did not err because inter alia DeOliveira's proposed jury instruction would have been inaccurate in that the jury could have relied on the assault in convicting DeOliveira of Burglary I if the jury found that DeOliveira possessed an intentional state of mind in committing the assault. The majority points to HRS § 702-208 (2014), which states in pertinent 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."

Although I agree with the majority that DeOliveira's proposed instruction overreached in seeking to completely bar the jury from considering the alleged assault as the underlying intended crime for purposes of the Burglary I count, I believe the jury nonetheless was insufficiently instructed in this regard. In my view, the jury should have been instructed that, in order to rely on the assault as the underlying crime for the Burglary I offense, it must find that DeOliveira intentionally assaulted Angyal, and not that he did so only recklessly. There were no instructions along these lines, and to the contrary, the instructions to the jury underscored the reckless standard in regard to the Assault II charge, as well as the lesser included offense of Assault in the Third Degree (Assault III) of which the jury ultimately convicted DeOliveira.

As to the Assault II charge, the jury was instructed as follows:

In Count 2, the Defendant is charged with the offense of [Assault II].
A person commits the offense of [Assault II] if he recklessly causes substantial bodily injury to another person.
There are two material elements of the offense of [Assault II], each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about April 7, 2012, in the City and County of Honolulu, State of Hawaii, the Defendant caused substantial bodily injury to Anne Angyal; and
2. That the Defendant did so recklessly.

( Emphasis added.) With regard to the lesser included offense of Assault III, the jury was instructed:

As to Count 2, if, and only if, you find the Defendant not guilty of [Assault II], or you are unable to reach a unanimous verdict as to this offense, then you must consider whether the Defendant is guilty or not guilty of the included offense of [Assault III] .
A person commits the offense of [Assault III] if he intentionally, knowingly, orrecklessly causes bodily injury to another person.
There are two material elements of the offense of [Assault III], each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about April 7, 2012, in the City and County of Honolulu, State of Hawaii, the Defendant caused bodily injury to Ann Angyal; and
2. That the Defendant did so recklessly.

( Emphasis added, strikeout in original.) Of note, while reading the Assault III instruction to the jury, the Circuit Court advised the jury,

I'm sorry. I'm going to ask you to take your pencils, and as to the second paragraph, you are to strike the words " intentionally" and " knowingly" and " or." For purposes of Count 2, those words are irrelevant and have no meaning.

( Emphasis added.) Thus, rather than an instruction indicating that the jury could find intentional conduct as supporting the included offense of Assault III, the jury was expressly told that the word " intentionally" was irrelevant and had no meaning.

Without an instruction to the jury that it was required to find that DeOliveira intentionally assaulted Angyal if it based a Burglary I conviction on the charged Assault II or the lesser included offense of Assault III, the instructions given were insufficient and misleading. The jury instructions for both Assault II and Assault III only instructed that the State must prove that DeOliveira caused the alleged injury recklessly. Although the State argued to the jury that they could rely on the assault as the underlying intended crime -- because the State asserted that DeOliveira acted intentionally in committing the assault and was reckless in terms of the injury, that resulted -- the jury was not instructed as such and instead was provided inconsistent and/or confusing instructions on this issue. See Nichols, 111 Hawai'i at 340 n.8, 141 P.3d at 987 n.8 (recognizing that arguments by counsel cannot cure defects in jury instructions and that " [a]rguments by counsel are likely to be viewed as statements of advocacy, whereas a jury instruction is a definitive and binding statement of the law" ) (quoting State v. Perkins, 2001 WI 46, 243 Wis.2d 141, 626 N.W.2d 762, 773 (Wis. 2001)) (block format omitted).

Moreover, given the proceedings, the actual findings made by the jury, and the record, it appears that the insufficient instructions may have been prejudicial to DeOliveira because it is reasonably possible that the jury improperly considered a reckless assault as the underlying crime for the Burglary I conviction. At trial, the State asserted a dual theory for the underlying crime to support the Burglary I offense: that DeOliveira intended to steal recording equipment in Angyal's bedroom and/or he intended to assault Angyal. The context of this case is that Angyal and DeOliveira had previously been in a relationship that had ended approximately eight months to a year prior to the incident, that they had worked with each other as musicians, and that approximately seven to ten days prior to the incident, DeOliveira had visited Angyal at her residence for dinner. DeOliveira does not dispute that in the early morning hours of April 7, 2012, he broke into Angyal's apartment while she slept by removing jalousie panes and entering through a window by the door. However, the testimony of DeOliveira and Angyal conflict in significant ways.

Angyal testified inter alia that after DeOliveira entered her residence, he said " I come in peace and aloha," anointed her with eucalyptus oil, walked past her into her room and picked up some recording equipment, and she in turn told him he could not take her things and that he needed to leave. Thereafter, Angyal asserts that DeOliveira grabbed her necklace and started to punch her in the head. DeOliveira, on the other hand, claims inter alia that he had been wandering around on foot that night after not being able to return to a Pagoda hotel room where he was staying with his girlfriend, that he had been drinking and had been beaten up while walking around, and that he ended up by Angyal's apartment and decided to go there because he was in an emergency situation. He does not dispute removing jalousie panels to enter her apartment, but he denies touching the recording equipment and claims the confrontation with Angyal became physical after she became worried that she would be evicted if her roommate saw DeOliveira in the apartment, that she started grabbing DeOliveira, trying to get him to leave, at which point he started to flail his arms.

The jury did not convict DeOliveira of the Assault II charge ( i.e., recklessly causing, substantial bodily injury), but instead convicted him of the lesser included offense of Assault III ( i.e., recklessly causing bodily injury). The jury also answered " [n]o" to a special interrogatory which asked " [d]id the prosecution prove beyond a reasonable doubt that the fight or scuffle was not entered into by mutual consent?" The jury's finding on the special interrogatory indicates they may have believed that the physical altercation was entered into by mutual consent, which is consistent with DeOliveira's testimony as to how the physical altercation occurred. Moreover, under DeOliveira's version of the incident, his conduct in the physical altercation with Angyal was not intentional. Thus, if the jury relied on the assault as the underlying crime for the Burglary I offense, it may have found DeOliveira guilty of Burglary I based on a recklessly committed assault. Despite that both parties argued during closing arguments whether the assault could form the underlying crime to support a burglary conviction, closing arguments cannot cure defects in jury instructions.[3] Nichols, 111 Hawai'i at 340 n.8, 141 P.3d at 987 n.8.

Thus, given the charges against DeOliveira, the State's theory of the case, and the proceedings below, it is my view that the jury instructions were insufficient and confusing regarding the extent that the assault charge could satisfy the " intent to commit therein a crime" element for the Burglary I offense, and further, the error was not harmless.

With regard to DeOliveira's second point of error, asserting that the Circuit Court should have given the jury a special interrogatory to ensure that it did not rely on the assault as the underlying intended crime for the Burglary I offense, I do not believe a special interrogatory would have been necessary as long as the jury had been properly instructed, as set forth above.

With regard to DeOliveira's third point of error, I concur with the majority that the Circuit Court did not err in denying DeOliveira's motion for judgment of acquittal on the Burglary I conviction. Viewing, the evidence in the light most favorable to the State, as is required for purposes of reviewing this issue, Angyal testified that after DeOliveira broke into her apartment, he went into her bedroom and started to take recording equipment. She also testified that when she told DeOliveira he could not take her things, he grabbed her necklace and started to punch her. Under the applicable standard of review for this issue, Angyal's testimony was sufficient to support a conclusion by the jury that DeOliveira intentionally entered unlawfully into her residence with intent to commit therein a crime against a person or against property rights.

I note, however, that concluding there was sufficient evidence to deny DeOliveira's motion for judgment of acquittal on Burglary I does not dilute the concerns stated above regarding the jury instructions in this case. In reviewing whether the jury instructions were sufficient, erroneous jury instructions are presumed to be harmful and if there is a reasonable possibility that the error may have contributed to the conviction, the judgment of conviction must be set aside. Nichols, 111 Hawai'i at 334, 141 P.3d at 981. Even if there was sufficient evidence, based on Angyal's testimony, to support the Burglary I conviction, this does not rule out the reasonable possibility in this case that the jury instead believed DeOliveira's testimony, at least to the extent that he did not try to take the recording equipment and did not intentionally hit Angyal, and thus that the jury improperly relied on a reckless assault as the underlying crime in convicting DeOliveira of Burglary I. This possibility is made more likely by the jury's finding that the State failed to prove that " the fight or scuffle was not entered into by mutual consent[,]" which is more consistent with DeOliveira's testimony than Angyal's testimony. For the reasons set forth above, I respectfully dissent in part and concur in part with the majority opinion. Based on my dissent, I would set aside DeOliveira's conviction for Burglary I and remand for a new trial on that count.

For the reasons set forth above, I respectfully dissent in part and concur in part with the majority opinion. Based on my dissent, I would set aside DeOliveira's conviction for Burglary I and remand for a new trial on that count.


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