429 P.3d 603 (Hawai’i App. 2018), CAAP-15-00000524, State v. Hinebaugh

Docket Nº:CAAP-15-00000524, CAAP-16-0000787
Citation:429 P.3d 603, 143 Hawai‘i 281
Party Name:STATE of Hawai‘i, Plaintiff-Appellee, v. Jessica L. HINEBAUGH, Defendant-Appellant, and Michael A. Ayala, Defendant-Appellee and State of Hawai‘i, Plaintiff-Appellee, v. Jessica L. Hinebaugh, Defendant-Appellee, and Michael A. Ayala, Defendant-Appellant
Attorney:Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellant Hinebaugh. Richard D. Gronna, Honolulu, for Defendant-Appellant Ayala. Donn Fudo and Stephen K. Tsuhima, Deputy Prosecuting Attorneys, City and County of Honolulu, for Plaintiff-Appellee.
Judge Panel:By: Fujise, Presiding Judge, Reifurth and Chan, JJ.
Case Date:October 30, 2018
Court:Court of Appeals of Hawai'i, Intermediate
 
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Page 603

429 P.3d 603 (Hawai’i App. 2018)

143 Hawai‘i 281

STATE of Hawai‘i, Plaintiff-Appellee,

v.

Jessica L. HINEBAUGH, Defendant-Appellant,

and

Michael A. Ayala, Defendant-Appellee

and

State of Hawai‘i, Plaintiff-Appellee,

v.

Jessica L. Hinebaugh, Defendant-Appellee,

and

Michael A. Ayala, Defendant-Appellant

Nos. CAAP-15-00000524, CAAP-16-0000787

Intermediate Court of Appeals of Hawai‘i

October 30, 2018

As Corrected November 28, 2018

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 13-1-1529)

On the briefs:

Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellant Hinebaugh.

Richard D. Gronna, Honolulu, for Defendant-Appellant Ayala.

Donn Fudo and Stephen K. Tsuhima, Deputy Prosecuting Attorneys, City and County of Honolulu, for Plaintiff-Appellee.

By: Fujise, Presiding Judge, Reifurth and Chan, JJ.

[143 Hawai‘i 282] SUMMARY DISPOSITION ORDER

This is the consolidated appeal of two co-defendants convicted of attempted murder, kidnapping, robbery, and theft.1

In CAAP-15-0000524, Defendant-Appellant, Jessica L. Hinebaugh (Hinebaugh) appeals from the Circuit Court of the First Circuit’s (Circuit Court) June 16, 2015 Judgment of Conviction and Sentence. In CAAP-16-0000787, Defendant-Appellant, Michael A. Ayala (Ayala) appeals from the Circuit Court’s October 31, 2016 Judgment of Conviction and Sentence.2

After a jury trial, the Circuit Court convicted Hinebaugh and Ayala of Count 1 - Attempted Murder in the Second Degree, in violation of Hawaii Revised Statues (HRS) § § 705-500 (2014), 707-701.5 (2014), and 706-656 (2014); Count 2 - Robbery in the First Degree, in violation of HRS § 708-840 (Supp. 2013) and/or 708-840(1)(b)(i) (Supp. 2013); Count 3 - Kidnapping, in violation of HRS § 707-720(1)(e) (2014); Count 5 - Identity Theft in the Second Degree, in violation of HRS § 708-839.7 (2014); and Count 6 - Theft in the Second Degree, in violation of HRS § 708-831(1)(b)(2014).[3] Hinebaugh was also convicted of Count 4 - Unauthorized Possession of Confidential Personal Information, in violation of HRS § 708-839.55 (2014).

On appeal, Hinebaugh and Ayala4 contend that the Circuit Court improperly admitted certain physical and testimonial evidence, and Ayala contends that the Circuit Court improperly excluded evidence of Hinebaugh’s juvenile conviction and abused its discretion in denying his motion for severance. Hinebaugh contends that the State committed prosecutorial misconduct by improperly commenting on her exercising her right not to testify, improperly shifting a burden of proof to Hinebaugh, and presenting improper character evidence.

After a careful review and consideration of the parties’ arguments, the record on appeal, and relevant legal authorities, we resolve Hinebaugh and Ayala’s points on appeal as follows and affirm Hinebaugh and Ayala’s Judgments of Conviction and Sentence.

A. AYALA AND HINEBAUGH

Ayala contends that testimony regarding zip ties should have been excluded because zip ties were not utilized in the commission of the offenses5, and both Ayala and Hinebaugh contend that admission of the evidence constituted impermissible character evidence under Hawaii Rules of Evidence (HRE) Rule 404(a) and impermissible evidence of other crimes, wrongs, or acts under HRE Rule 404(b)6 . We disagree.

Mere possession of zip ties in a purse or bedroom does not infer that Hinebaugh "was a person of a violent nature who was regularly in possession of nefarious paraphernalia" because Zip ties can be used for a multitude of purposes, most of which are innocuous and harmless. Be that as it may, Shelby Franks’s (Franks), the complaining witness (CW), and Ayala all testified that they had seen zip ties in Hinebaugh’s possession in the days leading to the attack, and Ayala brought zip ties out during the attack. It is reasonable to infer that Hinebaugh had planned to use the zip ties to restrain CW or had obtained the zip ties in preparation for the attack. Consequently, the Circuit Court did not abuse its discretion and therefore did not commit plain error, when it determined that the zip ties were admissible under HRE Rule 404(b) as proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident."7

B. AYALA

1. The Circuit Court properly excluded evidence of Hinebaugh’s juvenile conviction.

Ayala contends that he should have been allowed to introduce Hinebaugh’s juvenile conviction for arson and attempted murder of her father to prove that Hinebaugh had motive to attack CW. However, admission of the juvenile conviction would only show Hinebaugh’s motive or plan to injure her father, not make it more or less probable that she had a possible motive or plan to injure CW. Therefore, the conviction was inadmissible under HRE Rules 401[8], 4029, and 404(b), and the Circuit Court properly excluded evidence of Hinebaugh’s juvenile conviction.

2. The Circuit Court did not abuse its discretion in denying Ayala’s motion for severance.

Ayala contends that the failure to sever his trial from that of Hinebaugh denied him a fair trial. The joint trial would have denied Ayala a fair trial if one of the following situations were present: (1) where the core of each defense is in irreconcilable conflict with the other, (2) where the defendant in question is prevented from introducing evidence that would have been admissible in that defendant’s separate trial not involving other defendants, and (3) where evidence damaging to the defendant in question is admitted and it would not have been admissible in that defendant’s separate trial not involving other defendants.

State v. Timas, 82 Hawai‘i 499, 511, 923 P.2d 916, 928 (App. 1996). "The defendant has the burden of proving a denial of a fair trial." Id. Upon review of a motion to sever, the appellate court "may not conclude that the defendant suffered prejudice from a joint trial unless it first concludes that a defendant was denied a fair trial. What might have happened had the motion for severance been granted is irrelevant speculation." Id. at 512, 923 P.2d at 929 (ellipsis and brackets omitted).

Ayala argues that the first two situations apply to this case.10 First, although the defendants’ defenses differ, they are not irreconcilable. Unlike Walton, where both the prosecution and Walton’s co-defendant asserted that Walton stabbed the victim, State v. Walton, 133 Hawai‘i 66, 86, 324 P.3d 876, 897 (2014), this is not such a case. According to Ayala, Hinebaugh’s defense was that "[CW]’s abandonment instilled the hatred of Hinebaugh that led to the assault" while Ayala’s defense was that "he did not harbor such ill will or hatred towards [CW.]" However, that each had different motivations for their participation did not render their defenses irreconcilable. As Hinebaugh’s counsel succinctly stated, Ayala and Hinebaugh’s defenses were not inconsistent, but, rather, inconvenient.

Regarding the limitation of evidence, Ayala rests his argument for severance solely on his inability to introduce evidence of Hinebaugh’s juvenile conviction. As discussed, supra, the Circuit Court properly excluded the evidence of the conviction on relevance grounds, and separate trials would not have transformed the evidence from irrelevant to relevant. We hold that Ayala was not denied a fair trial by Circuit Court’s denying his motion for severance.

3. The Circuit Court properly instructed the jury on Assault in the First Degree.

Ayala cites this Court’s holding in Maddox for the proposition that CW’s medical treatment proved that her stab wounds did not rise to the level of severity required for a finding of Assault in the First Degree under HRS § § 707-700 (2014) and 707-710 (2014); thus, there was no rational basis in the evidence to provide jury instructions on Assault in the First Degree. State v. Maddox, 116 Hawai‘i 445, 453, 173 P.3d 592, 600 (App. 2007) (holding that a stab wound to the chest "that penetrates close to vital internal organs and vessels but misses without harming them, so that the injury quickly resolve itself without the need for significant treatment" does not constitute "bodily injury which creates a substantial risk of death" within the meaning of HRS § 707-700). Assuming, arguendo that the jury instructions in this case were in error...

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