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State v. Wilson

Intermediate Court of Appeals of Hawaii

December 26, 2017

STATE OF HAWAI'I, Plaintiff-Appellee,
KEVIN T. WILSON, Defendant-Appellant


          Andrew T. Park for Defendant-Appellant.

          Stephen K. Tsushima Deputy Prosecutingy Attorney City and County of Honolulu for Plaintiff-Appellee.



          NAKAMURA, C.J.

         Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Kevin T. Wilson (Wilson) with first-degree terroristic threatening for committing terroristic threatening with the use of a dangerous weapon. The charge arose from an incident in which Wilson allegedly threatened to kill the complaining witness (CW), his then girlfriend, and lunged toward her while holding a knife. After a jury-waived bench trial, the Circuit Court of the First Circuit (Circuit Court)[1] found Wilson guilty as charged. The Circuit Court sentenced Wilson to five years of incarceration.

         On appeal, Wilson contends that: (1) the Circuit Court erred in admitting evidence which he claims was obtained as the result of an illegal search of his residence and his illegal arrest; and (2) without admission of the excludable evidence, there was insufficient evidence to support a guilty verdict, and therefore, his retrial should be barred by double jeopardy. We affirm Wilson's conviction and sentence.



         The State presented the following evidence at trial.


         In response to a 911 call, Honolulu Police Department Officers Douglas Dunkirk, Kendrick Noda, and Jason Akiona were dispatched during the evening to a residence in Kahalu'u. The officers were aware that a third party had reported an argument between a male and female at that location, and that the female had called the third party saying that she was scared. After the initial 911 call, the officers received several updates from dispatch. The officers were informed that a male and female were arguing, the female was afraid, a knife was involved in the argument, and that the male had the knife.

         Upon arriving at the residence, Officers Dunkirk and Noda approached the front of the house while Officer Akiona went to the back door. All the officers were wearing their police uniforms. The front door to the residence was open and the screen door was closed. As they approached the front door, Officers Dunkirk and Noda could see Wilson in the house. The officers announced their presence and asked Wilson to step outside. Wilson refused and told the officer to "get the fuck away from my house." Officer Noda opened the screen door and directed Wilson to come out. Wilson complied, but continued to argue with the officers. Officer Dunkirk conducted a pat down of Wilson for weapons. No weapons were found, but Wilson remained agitated and continued to curse at the officers.

         Meanwhile, as Officer Akiona was making his way to the back of the house, he could hear a female crying. When he reached the back door, Officer Akiona could still hear the female crying. He called out to the female to try to get her to come to him, but received no response. After determining that Wilson was out of the house, Officer Akiona entered the house through the back door. Upon entering, he continued calling out to the female, saying "police . . . where are you?" Officer Akiona heard crying and sobbing, but did not receive a response to his calls. Officer Akiona followed the sounds he heard to a locked door in a hallway. He knocked on the door, announced "police, " and said, "it's okay, you can open the door."

         At that point, the CW, holding a baby, opened the door and came out of the bathroom; "[s]he was crying, she was afraid, she was shaken." The CW appeared to be "very scared" and was unable to speak in full sentences.

         Officer Akiona testified that when he entered the house, he did not have a search warrant or prior permission to enter. Officer Akiona explained that he entered the house without a warrant based on the following circumstances: The police had received a call that a female was possibly being harmed by a male, that a knife was involved, and "[n]ormally when someone says they're going to harm someone and they have a knife, we tend to think that there might be some type of injury that could occur." From his training and experience, Officer Akiona was aware that a search warrant takes over six hours to obtain. When the officers arrived at the residence, they observed the male, but not the female. Officer Akiona could hear crying from a female, but she did not respond to his call. Officer Akiona testified that he believed these circumstances constituted "exigent circumstances" which required him "to make entry to insure the safety of the female and the child." Officer Akiona related that "[i]n a situation where there's possible domestic violence and someone says they're about to be stabbed, " immediate action is necessary to "insure the safety and well-being of [the potential victim]."

         After the officers spoke with the CW, Officer Noda located the weapons that the CW said were used during the argument, a knife and tire iron, [2] in the garage on top of a freezer. Officer Noda initially observed these items while standing outside the garage, and Officer Akiona recovered the weapons and submitted them into evidence.


         The CW testified that at the time of the charged incident, she had been Wilson's girlfriend for three years. They had lived together on the mainland and in Hawai'i and were the parents of an 18-month-old boy. The CW testified that their relationship ended on the day of the charged incident and they were no longer together.

         According .to the CW, on the evening in question, she returned home with her son after visiting her mother in the hospital. Wilson was "sprawled out" on their bed and smelled of alcohol. The CW put her son, who had fallen asleep, on the bed next to Wilson and went back outside. There were two cars parked outside, both owned by the CW: a white SUV, which the CW drove, . and a Lexus sedan, which Wilson drove. The CW opened the door of the Lexus sedan and saw an empty condom wrapper on the floor. The CW thought "not again" as the condom wrapper was not the brand that they used.

         The CW confronted Wilson with the condom wrapper, and she told Wilson that he would need to find another place to stay and that she would be selling the Lexus sedan. Wilson replied, "[0]kay, whatevers, I'm going back to bed." The CW proceeded to post the Lexus sedan for sale on craigslist. She received immediate responses and made arrangements to show the car to a prospective buyer that evening. The CW left the house driving the Lexus sedan and also took Wilson's cell phone.

         On the way to meeting with the prospective buyer, the CW stopped at the 7-Eleven in Kahalu'u to clean out the car. As she was cleaning the car, the CW received a call from Wilson, who was angry. Wilson said, "[B]itch, where's my motherfucking car .... [Y]ou better get home . . . I'll kill you and I'll tear up this house and destroy the house and destroy your car." The CW was "very afraid" ...

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