87 Hawai'i 108, State v. Timoteo

• Decision Date: 14 October 1997
• Docket Number: No. 17987,17987
• Citation: 952 P.2d 865
• Parties: 87 Hawai'i 108 STATE of Hawai'i, Plaintiff-Appellant, v. George TIMOTEO, Defendant-Appellee, and Rodney Joseph, Jr., and Jonnaven Monalim, Defendants.
• Court: Hawaii Supreme Court

Page 865

952 P.2d 865

87 Hawai'i 108

STATE of Hawai'i, Plaintiff-Appellant, v. George TIMOTEO, Defendant-Appellee and Rodney Joseph, Jr., and Jonnaven Monalim, Defendants.

No. 17987.

Supreme Court of Hawai'i.

Oct. 14, 1997.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellant.

William F. Cooper, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

NAKAYAMA, Justice.

Plaintiff-appellant State of Hawai'i (the prosecution) appeals from a circuit court order granting defendant-appellee George Timoteo's motion for judgment of acquittal following a jury verdict of guilty of the time-barred lesser included offense of simple trespass in violation of Hawai'i Revised Statutes (HRS) 708-815 (1985). On appeal, the prosecution contends that (1) this court has jurisdiction over the instant appeal; (2) this appeal pursuant to HRS § 641-13(9) does not violate double jeopardy protections under the United States Constitution or the Hawai'i Constitution; and (3) the circuit court erred by concluding that the statute of limitations for simple trespass was jurisdictional and could not be waived. For the reasons set forth below, we vacate the circuit court's order granting Timoteo's motion for judgment of acquittal and remand this case to the circuit court with instructions to reinstate the jury's guilty verdict against Timoteo for simple trespass and to sentence him accordingly. I. BACKGROUND

On May 13, 1993, Timoteo was re-indicted ¹ as to the first count of an eight-count indictment ² for allegedly committing burglary in the first degree in violation of HRS § 708-810(1)(c) (1985). ³ Timoteo was arraigned on June 21, 1993, and he entered a plea of not guilty.

On August 13, 1993, co-defendant Jonnaven Monalim filed a motion to dismiss the indictment based upon an alleged violation of HRS § 701-108 (1985 & Supp.1992), ⁴ asserting that the prosecution had failed to commence proceedings within the periods required by the applicable statutes of limitations. Timoteo subsequently joined Monalim's motion on September 8, 1993. A hearing on the motion took place on October 4, 1993. On October 11, 1993, the circuit court dismissed only the eighth count, which alleged that Monalim had committed the offense of terroristic threatening in the second degree, because terroristic threatening in the second degree was a misdemeanor and the two-year statute of limitations for misdemeanors had expired. ⁵ The circuit court refused, however, to dismiss the remaining counts because those offenses were felonies for which the three-year statute of limitations had not expired. ⁶ Commencing on December 28, 1993, Timoteo, Joseph and Monalim were tried before a circuit court jury. Dennis Dilwith, Jr., Marc Kaanoi, Michael Barlog, Eric Kaanoi, and Joseph Carrero testified that on September 20, 1989, following an earlier confrontation, they were sitting in the living room of Marc Kaanoi's house when Monalim and Joseph entered without knocking. They testified that Joseph carried a shotgun and told them, "[Y]ou're all dead." Then Joseph and Monalim proceeded to kick or punch Barlog, Marc Kaanoi, and Carrero. Some of the witnesses testified that they saw Timoteo standing at the doorway carrying a garden pick. There was conflicting testimony as to whether Timoteo actually entered the house. After the prosecution rested its case, Timoteo moved for judgment of acquittal and moved to dismiss as a de minimis infraction. Both motions were denied. Timoteo then rested his case without presenting evidence and renewed his two prior motions.

Although the prosecution had charged Timoteo with burglary in the first degree, during the settling of jury instructions, Timoteo requested a jury instruction for the lesser included offense of simple trespass, ⁷ which the circuit court later gave the jury. The jury found Timoteo guilty of simple trespass.

Two days after the jury verdict, Timoteo filed a "motion to dismiss" for failing to charge him within the applicable statute of limitations. Timoteo's "motion to dismiss" was the functional equivalent of a post-verdict motion for judgment of acquittal pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 29(c) and, for the purpose of this appeal, we will construe it as such.

Timoteo argued that HRS § 701-108(2)(d) required the circuit court to dismiss the charge, and, thus, enter a judgment of acquittal, because the statute of limitations for simple trespass was one year, and more than one year had passed between the date of the offense and the date of the indictment. ⁸ The prosecution opposed Timoteo's motion, arguing that Timoteo had waived the statute of limitations defense when he requested the jury instruction for the time-barred lesser included offense of simple trespass.

After hearings on January 21 and March 21, 1994, the circuit court granted Timoteo's motion and dismissed the conviction because Timoteo had not been charged within the statute of limitations period for simple trespass. In reaching its decision, the circuit court concluded that the statute of limitations under HRS § 701-108(2)(d) was jurisdictional and could not be waived. The circuit court also concluded that this court's holding in State v. Kupau, 76 Hawai'i 387, 879 P.2d 492 (1994), mandated that trial courts give a jury instruction for a time-barred lesser included offense even without a request from a party.

The prosecution's timely appeal pursuant to HRS § 641-13(9) (1993) followed.

II. DISCUSSION

A. Jurisdiction Over This Appeal

Timoteo contends that this court does not have jurisdiction over this appeal because HRS § 641-13 does not specifically authorize the prosecution to appeal the order granting Timoteo's "motion to dismiss" following a jury verdict of guilty. We disagree.

As already stated, we deem Timoteo's "motion to dismiss" to be a post-verdict motion for judgment of acquittal following a jury verdict of guilty pursuant to HRPP Rule 29(c). HRS § 641-13(9) specifically authorizes the prosecution to assert an appeal "[f]rom a judgment of acquittal following a jury verdict of guilty." Thus, this court clearly has appellate jurisdiction over the instant appeal pursuant to HRS § 641-13(9).

B. Double Jeopardy

Timoteo contends that, even if HRS § 641-13(9) authorizes the instant appeal, under the double jeopardy clause of the fifth amendment to the United States Constitution, the prosecution cannot appeal a judgment of acquittal pursuant to HRS § 641-13(9) based upon a resolution of the facts at the proceeding. Under the circumstances of the instant case, we disagree.

As a general rule, we "strictly construe HRS § 641-13 and its predecessor statutes, especially in view of the double-jeopardy concerns implicated in the criminal appellate situation[.]" State ex rel. Marsland v. Shintaku, 64 Haw. 307, 310-11, 640 P.2d 289, 292 (1982) (citations and footnote omitted); see also State v. Kahalewai, 71 Haw. 624, 626, 801 P.2d 558, 560 (1990). However, "where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended." United States v. Wilson, 420 U.S. 332, 344, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975) (footnote omitted). Where "reversal on appeal would merely reinstate the jury's verdict, review of such an order does not offend the policy against multiple prosecution." Id. at 344-45, 95 S.Ct. at 1022. As Justice Nakamura correctly noted in his dissent in State v. Rodrigues, 67 Haw. 70, 87 n. 12, 679 P.2d 615, 626 n. 12, cert. denied, 469 U.S. 1078, 105 S.Ct. 580, 83 L.Ed.2d 691 (1984), "[n]o double jeopardy problems would be implicated in a government appeal from a judgment of acquittal following a jury verdict of guilty.... For a reversal there would result in a reinstatement of the verdict, not a retrial."

The instant case is a government appeal from a judgment of acquittal following a jury verdict of guilty, and our vacation of the judgment of acquittal will result in the reinstatement of the guilty verdict, not a retrial. Accordingly, we hold that the prosecution's appeal from the judgment of acquittal following the jury's verdict of guilty pursuant to HRS § 641-13(9) does not violate the protections against double jeopardy as guaranteed by the United States Constitution or the Hawai'i Constitution.

C. Timoteo Waived the Statute of Limitations for Simple Trespass

The prosecution contends that the circuit court erred in granting Timoteo's post-verdict motion for judgment of acquittal because the circuit court based its decision on its erroneous conclusions that (1) a statute of limitations is jurisdictional, (2) a statute of limitations cannot be waived, and (3) this court's holding in Kupau, 76 Hawai'i 387, 879 P.2d 492, mandates that trial courts give a jury instruction for a time-barred lesser included offense even without a request from a party. We agree with the prosecution.

As stated, we deem Timoteo's "motion to dismiss" to be a post-verdict motion for judgment of acquittal following a jury verdict of guilty pursuant to HRPP Rule 29(c), which provides the following:

(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 10 days after the jury is discharged or within such further time as the court may fix during the 10-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

When reviewing a post-verdict motion for judgment of acquittal,

we employ the same standard that a trial court applies to such a motion,...