77 Hawai'i 340, State v. Toro

• Decision Date: 28 October 1994
• Docket Number: No. 17163,17163
• Citation: 77 Hawaii 340,884 P.2d 403
• Parties: 77 Hawai'i 340 STATE of Hawai'i, Plaintiff-Appellee, v. Alexander TORO, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 403

884 P.2d 403

77 Hawai'i 340

STATE of Hawai'i, Plaintiff-Appellee, v. Alexander TORO, Defendant-Appellant.

No. 17163.

Intermediate Court of Appeals of Hawai'i.

Oct. 28, 1994.

As Amended Nov. 2, 1994.

Reconsideration Denied Nov. 17, 1994.

Certiorari Denied Dec. 8, 1994.

Syllabus by the Court

1. Under a plain reading of Hawai'i Revised Statutes § 641-16 (1985), an appellate court has the discretion to affirm, reverse, or modify the sentence of a trial court in a criminal case on appeal as in its opinion the facts and law warrant.

2. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence which is not relevant is not admissible.

3. On appeal, the circuit court's ruling on the question of whether evidence is relevant under Hawai'i Rules of Evidence Rule 401 is reviewed under the right/wrong standard.

4. Under Hawai'i Rules of Penal Procedure (HRPP) Rule 52(a), any error which does not affect Defendant's substantial rights shall be disregarded. Conversely, where Defendant's substantial rights are affected, there is reversible error.

5. To determine whether the error affected the substantial rights of Defendant, the record is reviewed from all four corners. Thus, even where error occurs, there will be no reversal where on the record as a whole, no prejudice to the appellant has resulted.

6. In determining whether an error which might prejudice the jury against Defendant affected Defendant's substantial rights under HRPP Rule 52, the question is not were the jurors right in their judgment regardless of the error or its effect upon the verdict, but it is rather what effect the error had or reasonably may be taken to have had upon the jury's decision. Put another way, the question is whether the error itself had substantial influence upon the jury's verdict.

7. Hawai'i Standard Jury Instructions Criminal (December 1991) is a product of the cooperative effort of judges and attorneys to encompass and to standardize rules of law in jury instructions, and is widely used by the circuit courts. However, as a general proposition, the circuit courts are not required to give such instructions.

8. Under HRPP Rule 30, the crux of the court's instructions is that they afford to the jury an adequate and understandable charge.

9. The fact that a paragraph in an instruction may be objectionable will not result in reversal if, read together with the other instructions, the instructions as a whole correctly state the law and are not inconsistent or misleading.

10. While the use of the phrase "own observations and life experiences" is not sanctioned, where the other instructions properly limit the discretion of the jury to those factors which were relevant in arriving at a decision, there was no reversible error in advising the jurors that they might consider the evidence in light of their own observations and life experiences as well as their common sense.

11. The omission of the words "except for those parts which you nevertheless believe to be true" from an instruction informing the jury that it might reject "all or any part of the testimony" of a witness it has found has testified falsely, is not approved, but does not constitute reversible error where the reasonable inference drawn is that the jury was free to consider that part of the testimony it did not reject, and other instructions indicated that the jury was to consider evidence it found credible.

Dwight C.H. Lum, on the brief, Honolulu, for defendant-appellant.

Donn Fudo, Deputy Pros. Atty., City & County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE, and ACOBA, JJ.

ACOBA, Judge.

Defendant-Appellant Alexander Toro (Defendant) was indicted on two counts of Sexual Assault in the Third Degree, in violation of Hawai'i Revised Statutes (HRS) § 707-732(1)(b) (Supp.1992) ¹ for conduct which allegedly occurred on August 20, 1992. Both counts charged that on that date, Defendant placed his hand on the breast of a female not his spouse, who was less than fourteen years old.

Jury trial began on February 16, 1993. On February 18, 1993, the jury returned a verdict of not guilty as to Count I and guilty as to Count II. Sexual assault in the third degree is punishable by a term of imprisonment of five years. HRS § 706-660 (Supp.1992). However, the State moved, pursuant to HRS §§ 706-661 (1985) and -662(1) (Supp.1992) ², for an extended term of imprisonment of ten years under Count II (hereafter extended term motion). The circuit court granted the extended term motion. Defendant appeals from the judgment filed May 21, 1993.

Defendant claims the circuit court committed errors in:

(1) allowing the State to elicit "prejudicial character evidence" concerning Defendant;

(2) refusing Defendant's jury instruction No. 2 pertaining to consideration of the evidence by the jury, and giving the court's own instruction No. 2;

(3) refusing Defendant's jury instruction No. 6 concerning rejecting testimony of witnesses, and giving Court's Instruction No. 10;

(4) sentencing Defendant to an extended term of imprisonment (5) imposing cruel and unusual punishment by sentencing Defendant to an extended term of imprisonment; and

(6) denying Defendant a hearing on restitution ordered by the court.

On appeal, the State does not contest Defendant's entitlement to a restitution hearing, and does not dispute Defendant's contention that his extended term sentence was improper. ³ It concedes that Defendant's sentence should be vacated and the case remanded for new sentencing proceedings because the record is "unclear" as to whether the court's sentencing decision was based on proof beyond a reasonable doubt, and whether the court followed the rules of evidence at the sentencing hearing, all of which are required under State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976). ⁴ The State having agreed that the matter of sentencing should be remanded to the sentencing court for a new hearing on its extended term motion, it is unnecessary to reach Defendant's fourth, fifth, and sixth points for the purpose of deciding this appeal.

In his reply brief, however, Defendant maintains that his sentence should be modified "to the ordinary term of five years" by this court, pursuant to HRS § 641-16 (1985). ⁵

Under a plain reading of HRS § 641-16, an appellate court has the discretion to affirm, reverse, or modify the sentence of a trial court in a criminal case on appeal "as in its opinion the facts and law warrant." See State v. LeVasseur, 1 Haw.App. 19, 30, 613 P.2d 1328, 1335, cert. denied, 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479, reh'g. denied, 449 U.S. 1134, 101 S.Ct. 958, 67 L.Ed.2d 122 (1980). Compare Territory v. Kunimoto, 37 Haw. 591, 596 (1947) (under the predecessor of HRS § 641-16, such "judicial power should be exercised with caution and only upon a manifest showing from the evidence of an abuse of discretion or that the severity of the punishment imposed is a result of prejudice or passion"). Because the trial court did not apply the appropriate sentencing standards to the extended term motion in the first instance, and remand would also allow the circuit court to reconsider other sentencing alternatives in fashioning an appropriate sentence, we do not believe a modification of the sentence is warranted on appeal.

We turn, then, to the three points remaining.

I.

Prior to admission of the purported character evidence complained of, much of the evidence had been adduced. The complaining witness, Defendant's stepdaughter (witness), had testified that on August 20, 1992, she was in Defendant's home with her sister, her cousin, and her stepsister, Defendant's daughter (daughter). At one point, all of the girls entered Defendant's bedroom and lay on the bed with Defendant. When the mail carrier arrived, the girls left the bedroom to retrieve the mail. After they returned, witness lay on the bed by Defendant, reading a magazine.

With respect to Count I, witness testified that Defendant took the magazine from her, put his arm around her, and with his hand over her clothes, touched her breast for approximately two minutes. Defendant then told her to hang up the laundry and told daughter to take a bath. All of the girls left the room.

At that time, witness did not realize the import of what Defendant had done. Later, witness would only recall the incident when she "was thinking back if there was something else he did[.]"

With respect to Count II, witness stated that she subsequently returned to the bedroom, laid on the bed with Defendant, and Defendant "got his right arm and he put his left arm over my shoulder again and then with his right arm he--under my clothes he started rubbing my breast." Defendant warned witness not to tell her mother, Defendant's wife.

However, later that evening, witness told her mother what Defendant had done. Witness' mother, Mrs. Toro, testified that witness was "very quiet" and "very upset" the night following the incident, and that she did not want to return home. Mrs. Toro later confronted Defendant with the accusations made by witness. Defendant, however, indicated that nothing had happened.

Mrs. Toro moved out of the home, and Defendant thereafter contacted her on three occasions. On the first occasion, Defendant claimed that witness crawled into bed with him and started touching him, making him feel uncomfortable, and he removed her from the bed. Next, Defendant claimed that he was wrestling with witness and "it was an accident" and he "accidentally bumped her there." In his third conversation with Mrs. Toro, Defendant said, "[Y]ou know, [I] didn't do anything, all [I] did was touch her little [expletive] tit."

On August 26, 1992, a police officer interviewed witness. At that time, witness only recounted the incident comprising Count...