State v. Aplaca, No. 21879.

• Decision Date: 13 June 2001
• Docket Number: No. 21879.
• Citation: 96 Haw. 17,25 P.3d 792
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Gordon Lee APLACA, Defendant-Appellant.
• Court: Hawaii Supreme Court

25 P.3d 792

96 Haw. 17

STATE of Hawai`i, Plaintiff-Appellee, v. Gordon Lee APLACA, Defendant-Appellant.

No. 21879.

Supreme Court of Hawai`i.

June 13, 2001.

Michael G.M. Ostendorp, on the briefs, Honolulu, for the defendant-appellant, Gordon Lee Aplaca.

Bryan K. Sano (Deputy Prosecuting Attorney), on the briefs, for the plaintiff-appellee, State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Court Judge KOCHI, assigned by reason of vacancy.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Gordon Lee Aplaca appeals from the judgment of the first circuit court, the Honorable Richard K. Perkins presiding, convicting him of and sentencing him for the offense of attempted murder in the second degree, in violation of Hawai`i Revised Statutes (HRS) §§ 707-701.5 (1993)¹ and 705-500 (1993),² filed on July 10, 1998. On appeal, Aplaca asserts that the circuit court erred in denying his motion for judgment of acquittal and abused its discretion in denying his motion for a new trial because the record, even when viewed in the light most favorable to the prosecution, does not contain substantial evidence supporting a conclusion regarding "the issue of identity." Aplaca also contends that, inasmuch as "[a]ttempted [m]urder of a child under 8 years old is an unclassified felony," it must be "treated as a Class C felony" for "sentencing purposes" and, thus, that the circuit court erred in sentencing him, pursuant to the enhancements set forth in HRS § 706-660.2 (1993),³ to a fifteen-year, rather than a twenty-month, mandatory minimum term of imprisonment.

Aplaca's points of error are without merit. However, we take this opportunity to clarify that the sentencing error identified in State v. Tafoya, 91 Hawai`i 261, 271, 982 P.2d 890, 900 (1999) (holding that the jury, and not the sentencing judge, must find the "intrinsic" facts requisite to enhancing a sentence pursuant to HRS § 706-660.2) is subject to harmless error analysis. Accordingly, we hold that, although the circuit court erred in failing to submit to the jury the questions whether the victim in the present matter— i.e., Aplaca's daughter, Katiana—was eight years of age or younger and whether Aplaca knew or reasonably should have known that she was under eight years of age, see id. at 271, 982 P.2d at 900 ("findings regarding (a) the age . . . of the victim and (b) whether `[s]uch disability is known or reasonably should be known to the defendant' entail `intrinsic facts'" that "the Hawai`i Constitution⁴ requires . . . be made by the trier of fact") (some brackets in original), the error was harmless beyond a reasonable doubt. We therefore affirm Aplaca's conviction and enhanced sentence.

I. RELEVANT BACKGROUND

By complaint, Aplaca was charged, inter alia, with attempted murder in the second degree in relevant part as follows:

On or about the 18th day of June, 1997, in the City and County of Honolulu, State of Hawaii, [Aplaca], being the parent, guardian, or any other person having legal or physical custody of [Katiana], a person less than eighteen years (18) of age, did intentionally engage in conduct which is a substantial step in a course of conduct intended or known to cause the death of [Katiana], . . . thereby committing the offense of Attempted Murder in the Second Degree, . . . and [Katiana] was eight years (8) of age or younger, thereby subjecting [Aplaca] to the penalty provisions of Offenses Against Children pursuant to [HRS §§] 706-662(5) [(1993)] and 706-660.2[.]

After a jury returned a general verdict finding Aplaca guilty of attempted second degree murder, the circuit court imposed a sentence of life with the possibility for parole, enhanced, pursuant to HRS § 706-660.2, by the imposition of a mandatory minimum term of fifteen-years' incarceration. The jury, however, made no findings regarding Katiana's age or whether her age was known or reasonably should have been known to Aplaca.

With regard to Aplaca's claims arising out of the circuit court's denial of his motions for judgment of acquittal and for a new trial, the following facts are pertinent. On June 17, 1997, Katiana-Marie Kapuaililani Aplaca (Katiana), a two-month old child, was examined by Arlene Myers, M.D., during a routine medical check-up; Dr. Myers found her to be "fine," aside from a nonmalignant tumor on her neck, with which she had been born. The following day, however, Robert J. Brumblay, M.D., treated Katiana in the emergency room of Wahiaw; a General Hospital (WGH). Katiana's injuries included multiple fractures in her skull and ribs, bleeding in some parts of her brain, a cut inside her upper lip, and faint bruises on her neck that were consistent with finger impressions.

Katiana was transferred to the pediatric intensive care unit of Kapi`olani Medical Center (KMC). Donald Christian Derauf, M.D., qualified at Aplaca's trial as an expert in the fields of pediatrics and child abuse, examined Katiana on June 19, 1997 at KMC. In his opinion, Katiana was unquestionably abused and suffered from shaken impact syndrome, which usually occurs when "an adult grabs the [infant's] chest . . . with his—or her hand around the chest then shakes the baby by the chest back and forth." Dr. Derauf testified that, in his opinion, Katiana's skull fractures were not caused by shaking but, rather, by an impact greater than that which would be caused by a typical fall. Dr. Derauf elaborated on the extent of Katiana's injuries and explained that x-ray examinations revealed that she had sustained several fractures to her ribs, which were inflicted at various times, a fracture to her third lumbar vertebra, a subdural hematoma to and swelling of the brain that pressured the base of her skull, retinal and abdominal bleeding, and a severed frenum, which is a fold of mucous membrane on the inside of the middle upper lip, connecting the lip to the gums. Dr. Derauf testified that Katiana's acute injuries had been inflicted no more than twelve hours before she arrived at WGH.

Similarly, Robert Bart, M.D., who examined Katiana on June 18, 1997, testified that her acute injuries were inflicted within twelve hours of her arrival. Moreover, Dr. Bart testified that, based upon his examination of Katiana and in his opinion: (1) something had hit her or she had been struck against something a minimum of three times, resulting in three skull fractures; (2) someone had violently shaken her, resulting in fractured ribs and retinal bleeding; and (3) the force with which she was shaken had been equivalent to what would be experienced by an infant, who was not restrained by a seat belt, in a fifty to sixty mile-per-hour car accident or, alternatively, by an infant being dropped from a ten-foot height three times.

Katiana's mother, Amy, testified that, sometime after midnight on June 18, 1997, Katiana had begun to cry and that Aplaca had picked Katiana up and taken her and her bottle out of the bedroom and into the living room. Katiana's crying increased, soon after which Aplaca returned to the bedroom, placed Katiana in her crib, and laid down in bed. Katiana once again began to cry. Aplaca jumped up and "jerked" Katiana's crib, causing it to strike the bottom of a cupboard that was located approximately two or three inches above the crib, which caused Katiana's crying to increase still more. Aplaca then lifted Katiana by her arms and began to "vibrate her in his arms." According to Amy, Aplaca appeared "very tired and frustrated," and when she inquired what was wrong, he said, "I cannot get her to stop crying." Amy also testified that "the night before [Katiana] went to the hospital," Aplaca had stated that "he hated [Katiana] and wished she were dead."

At the close of the prosecution's case-in-chief, the circuit court denied Aplaca's motion for judgment of acquittal. After testifying, inter alia, that he was Katiana's father, that she was a "newborn," and that he had not harmed or shaken her, Aplaca rested his own case and renewed his motion for judgment of acquittal, which the circuit court again denied. Subsequent to the jury's verdict finding him guilty, but prior to being sentenced, Aplaca filed a written motion for judgment of acquittal or, in the alternative, for a new trial, which was impliedly denied when the circuit court sentenced Aplaca to life imprisonment with the possibility of parole, enhanced by a mandatory minimum term of fifteen-years' incarceration.

II. STANDARDS OF REVIEW

A. Motion For Judgment Of Acquittal

When reviewing a . . . motion for judgment of acquittal,

we employ the same standard that a trial court applies to such a motion, namely, whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, the evidence is sufficient to support a prima facie case so that a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Sufficient evidence to support a prima facie case requires substantial evidence as to every material element of the offense charged. Substantial evidence as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Under such a review, we give full play to the right of the fact finder to determine credibility, weight the evidence, and draw justifiable inferences of fact.

State v. Jhun, 83 Hawai`i 472, 481, 927 P.2d 1355, 1364 (1996) (citations and internal quotation marks omitted).

State v. Jenkins, 93 Hawai`i 87, 99, 997 P.2d 13, 25 (2000) (quoting State v. Timoteo, 87 Hawai`i 108, 112-13, 952 P.2d 865, 869-70 (1997)).

B. Motion For A New Trial

As a general matter, the granting or denial of a motion for a new trial is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. . . . An abuse of discretion occurs if the trial court has clearly exceeded the

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