TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000061; CR.
C.H. Lum for petitioner.
M. Anderson for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
case arises out of the 2008 robbery of the Aiea Cue, in which
three intruders restrained four individuals inside a pool
hall and stole cash and other valuables. Two of the
intruders, Ju Young Woo ("Woo") and David Teo
("Teo"), entered into cooperation agreements with
the State, and the third intruder, Patrick Deguair, Jr.
("Deguair"), continued on to a jury trial.
Deguair's defense was that Woo and Teo coerced him into
participating in the crime. The jury found Deguair guilty on
all counts: Count 1 (Robbery in the Second Degree, a class B
felony), Count 2 (Kidnapping as a class A felony), and Counts
3, 4, and 5 (Kidnapping as a class B felony). The jury also
answered interrogatories finding that each act of kidnapping
was committed as a continuing course of conduct, with no
separate and distinct intent from the robbery. Therefore,
pursuant to Hawai'i Revised Statutes ("HRS")
§ 701-109(1)(e) (2014), which prohibits multiple
convictions for offenses committed as a continuing course of
conduct, the Circuit Court of the First Circuit merged
Count 1 (the robbery, a lesser grade class B felony) into
Count 2 (one of the kidnappings, a higher grade class A
appeal, Deguair argued that the circuit court erred in
convicting him of kidnapping as a class A felony on Count 2,
as he was entitled to the mitigating defense,  which would have reduced the kidnapping to
a class B felony. A majority of the Intermediate Court of
Appeals ("ICA") agreed, vacating the circuit
court's Judgment of Conviction and Sentence as to Count 2
as a class A felony and remanding the case for entry of a
judgment of conviction on Count 2 as a Class B felony and for
resentencing solely on Count 2. State v. Deguair,
CAAP-13-0000061 (App. Feb. 27, 2015) (mem.) at 3. The ICA
rejected Deguair's other points of error and affirmed the
circuit court's judgment with respect to the convictions
and sentences on Counts 3, 4, and 5. Deguair, mem. op. at 16.
certiorari, Deguair argues that all of his convictions are
now of the same class (class B felonies). He contends that
HRS § 701-109(1)(e) requires the kidnapping convictions
to be "merged" into the robbery conviction. He also
asserts that the ICA gravely erred in holding that the
circuit court properly excluded prior bad act evidence that
Woo and Teo were violent, worked for O'ahu criminal
organizations providing protection, and needed money. Deguair
also contends that the ICA gravely erred in holding that the
circuit court properly declined to declare a mistrial after
the prosecutor questioned Deguair about whether he and Teo
had shot guns at the Koko Head shooting range.
that the ICA did not err in concluding that the circuit court
did not abuse its discretion in granting the State's
motion in limine as to the prior bad acts of Teo and Woo. We
also hold that the ICA did not err in concluding that the
circuit court did not abuse its discretion in declining to
declare a mistrial. We hold, however, that the ICA erred in
remanding this case for resentencing solely on the kidnapping
conviction, foreclosing the possibility that the kidnapping
convictions could merge into the robbery conviction. We hold
that, under HRS § 701-109(1)(e), Deguair committed the
kidnappings as part of a continuous course of conduct in
committing the robbery; therefore, the kidnapping convictions
should merge into the robbery conviction. Accordingly, we
vacate the ICA's April 21, 2015 Judgment on Appeal, and
the circuit court's January 2, 2013 Judgment of
Conviction and Sentence. On remand, the circuit court is
directed to reinstate Deguair's conviction on Count
to dismiss the convictions on Counts 2, 3, 4, and 5, and to
resentence Deguair on Count 1 only, pursuant to HRS §
701-109(1)(e), as the kidnapping convictions merged into the
21, 2008, the State filed an Indictment against Deguair, Woo,
and Teo alleging that they committed Robbery in the First
Degree (Count 1), in violation of HRS §
708-840(1)(b)(ii) (2014). The Indictment also alleged that they
kidnapped Paul Beltran (Count 2), Ruth Lemons (Count 3), John
Llacuna (Count 4), and Talagu Moliga (Count 5), all in
violation of HRS § 707-720(1)(e) (2014). Before
trial, both Woo and Teo entered into plea agreements and
agreed to testify for the State, and Deguair proceeded to
trial on his own.
The State's Motion in Limine No. 2
August 29, 2012, the State filed a Motion in Limine No. 1
requesting an order from the circuit court compelling Deguair
to disclose "any and all evidence the defense intends to
use" to support the anticipated duress and choice of
same day, Deguair's counsel sent the State two letters
setting forth prior bad act evidence concerning Teo and Woo
that Deguair intended to proffer. Two days later, on August
31, 2012, the State filed a Motion in Limine No. 2 seeking to
preclude reference to the following allegations:
1. David Teo is/was known as a strong arm and debt collector
for Oahu crime organizations.
2. David Teo participated in the "taxing" of legal
and illegal gambling businesses for protection of their
3. In [sic] or about March 2008, David Teo smashed a
man's face into the windshield of a car while attempting
to collect money from the man, in the parking lot of Tony
Roma's restaurant in Pearl City.
4. David Teo told Defendant Patrick Deguair, Jr. that he
(David Teo) had just gotten out of jail and "needed this
5. David Teo said to Defendant Patrick Deguair, Jr.,
"Remember what happened to the guy in the parking
6. Ju Young Woo protected criminal organizations operating in
the Pearl City and Aiea Communities.
7.Ju Young Woo received and sold stolen motor vehicle parts.
8. Ju Young Woo collected money for drug dealers.
9. Ju Young Woo beat several people with a metal pipe on the
bike path near the ABC Used Auto Parts.
10. Aiea Cue was not paying its "tax" for
protection to "the Samoans."
11. Ju Young Woo needed money to pay a lawyer for
representation concerning an arrest for stealing a tractor.
The State objected to the timing of the disclosure of this
HRE Rule 404(b) evidence, as the trial had been pending for
four years, and Deguair provided notice to the State of these
bad acts with only two weeks before the start of trial.
hearing on the motion, Deguair's counsel argued that the
bad act evidence was relevant to his duress and choice of
evils defenses. Specifically, he argued that the jury needed
to know what Deguair knew of Teo and Woo in order to judge
whether a person of reasonable firmness would have been able
to resist these men. The State counter-argued that the
probative value of the evidence was "so attenuated"
that it was "outweighed by 403 concerns. . . ."
circuit court ruled as follows:
I am going to . . . specifically make that 403 determination
that any probative value this might have along the lines that
[Deguair's counsel] has brought up as to that element of
the duress defense . . . would be I think substantially
outweighed by the danger of unfair prejudice and confusion of
the issues, et cetera. . . . I'm going to grant the
State's motion to preclude all of these except . . .
three and five. Because . . . that is a threat, certainly an
implied threat, the use of force that would go directly to
the Defense's duress defense which I'm strongly
inclined to include in this case when it goes to the jury.
facts about the robbery elicited at trial are not disputed.
Deguair did not deny his participation (with Teo and Woo) in
robbing the Aiea Cue and kidnapping four individuals who were
there. Instead, Deguair's primary defense was duress. He
claimed he took part in Woo's plan because he was scared
facts elicited at trial regarding the events of April 3, 2008
were as follows. At closing time at the Aiea Cue, four
friends remained on the premises: John Llacuna (the cashier),
Ruth Lemons (Llacuna's girlfriend), Paul Beltran (who
helped with cleaning and odd jobs), and Tony Moliga (security
and parking lot attendant). Beltran was at the back door
trying to lock it, when he heard knocking. Llacuna went to
the door, when it suddenly burst open, and Teo, Deguair, and
ran toward the front door, and Teo pursued him, tackled him
to the ground, handcuffed him behind his back, and left him
face-down on the ground. Llacuna, Lemons, and Moliga were
herded to the rear of the Aiea Cue and ordered to lie face
down and to relinquish their cell phones. Teo later carried
Beltran over to them.
appeared that the three intruders were working together.
Deguair used a crowbar to strike and redirect the
videocameras. Woo used a torch to cut open the ATM and coin
machine. The cash register was also opened with a nearby key.
Teo, Deguair, and Woo exited the Aiea Cue after taking money
and other property.
Testimony of Woo
State called Woo who testified that he met Deguair shortly
before the Aiea Cue robbery. Woo explained that Deguair was
the mastermind behind the robbery and assigned Woo the job of
cutting open the ATM and change machine, assigned Teo the job
of getting people on the ground, and gave himself the job of
redirecting the videocameras. Woo testified that he did not
force Deguair to participate in the robbery, and that Deguair
participated willingly. At the close of Woo's testimony,
the State rested.
Testimony of David Teo
defense called Teo, an acquaintance of Deguair's. He
testified that the robbery was Deguair's plan, that he
did not force Deguair to make a plan, and that Deguair
participated willingly in the robbery.
Testimony of Patrick Deguair, Jr.
the jury's hearing, before Deguair took the stand,
Deguair's counsel asked the circuit court if he could
elicit testimony that Deguair was afraid of Woo because he
saw Woo kill a man in March 2008. The circuit court decided
to allow the testimony to come in.
then took the stand. He testified that he witnessed Teo
"walk up behind [a] guy and smash his head
into" a car windshield, bloodying the man's face,
and causing the man to pass out on the ground. He testified
that Teo told him to buy an ...