State v. Arlt, 15676

• Decision Date: 06 August 1992
• Docket Number: No. 15676,15676
• Citation: 833 P.2d 902,9 Haw.App. 263
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Jeffery ARLT, Defendant-Appellant, and Charles Dunn, Defendant.
• Court: Hawaii Court of Appeals

Page 902

833 P.2d 902

9 Haw.App. 263

STATE of Hawaii, Plaintiff-Appellee, v. Jeffery ARLT, Defendant-Appellant, and Charles Dunn, Defendant.

No. 15676.

Intermediate Court of Appeals of Hawai'i.

Aug. 6, 1992.

Syllabus by the Court

1. The trial court is vested with discretion regarding the admissibility of evidence at trial and such a decision will not be reversed absent an abuse.

2. The responsibility for maintaining the delicate balance between the probative value and prejudicial effect of any evidence lies largely within the discretion of the trial court, and even where error occurs in the admission of evidence, there will be no reversal where, on the record as a whole, no prejudice to the appellant has resulted.

3. Third Degree Assault, which requires a finding that defendant inflicted bodily injury on the victim, is not a lesser-included offense within the offense of First Degree Robbery under Hawaii Revised Statutes (HRS) § 708-840(1)(b)(i) (1985) because, while that specific type of robbery requires the use of force, it does not require the infliction of bodily injury.

4. In order to sustain a conviction of First Degree Robbery under HRS § 708-840(1)(b)(i) (1985), four material elements must be proved beyond a reasonable doubt:

(1) That the defendant was in the course of committing theft;

(2) That the defendant was armed with a dangerous instrument;

(3) That the defendant used force against the person of anyone present;

(4) That the defendant did so with intent to overcome that person's physical resistance or physical power of resistance.

5. Under the common law, in order for a defendant to be guilty of robbery, the prosecution had to prove that the defendant took the property by means of force or violence or by putting the victim in fear. The force or intimidation employed was the gist of the offense. The courts did not agree, however, as to whether the use of force or intimidation to retain possession of property taken or to facilitate escape, rather than to physically take the property, supplies the element of force or intimidation necessary to the offense of robbery.

6. The conflict under the common law as to when force must be used to elevate a theft to robbery was obviated by the Hawaii legislature when it enacted the Hawaii Penal Code, specifically, HRS § 708-842, which defines the phrase "in the course of committing a theft" for purposes of a robbery offense. By enacting HRS § 708-842, the legislature clearly intended that a robbery conviction may be predicated on the use or threatened use of force or violence to retain possession of stolen property during the flight after theft.

7. Where the defendant snatched an item from a store and fled the store's premises without the use of force or threatened use of force, the theft of the item was completed.

8. Where the defendant completed an act of theft by taking an item from a victim without the use of force or threatened use of force, and subsequently, while returning the item to the victim, used force against 9. Where there is a reversal of a conviction for insufficiency of evidence, the conviction can be modified to reflect a lesser crime for which there is evidence and which the fact finder necessarily found occurred, if the lesser crime was alleged in the accusatory instrument.

the victim, the force used did not occur "in the course of committing theft," and accordingly, did not convert the theft to robbery.

10. HRS § 602-5(7) (1985), which allows an appellate court to make and award judgments, decrees, orders and mandates, and do such other acts and take such other steps as may be necessary for the promotion of justice in matters pending before it, authorizes an appellate court to modify a trial court's judgment of conviction if the interests of justice would be thereby promoted.

Peter Van Name Esser and Willard J. Peterson (Peterson & Esser, of counsel), on the briefs, Honolulu, for defendant-appellant.

Melinda K. Mendes, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

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

WATANABE, Judge.

Jeffery Arlt (Defendant) appeals his September 24, 1991 conviction of First Degree Robbery. Concluding that Defendant did not use force "in the course of committing theft" and that First Degree Robbery was thus not proved, we vacate Defendant's conviction below. However, as there is overwhelming evidence on the record that Defendant committed the lesser-included offense of Theft in the Fourth Degree, we remand the case to the First Circuit Court with instructions to enter a judgment convicting Defendant of Theft in the Fourth Degree and resentencing him accordingly.

FACTS

The facts in this case are essentially undisputed. In February 1990, Defendant, who had recently turned eighteen, and his two friends, Charles and Chance Dunn, came to Hawaii from California for a two-week vacation. On the evening of February 28, 1990, after consuming several drinks at a luau, ¹ Defendant and his friends decided to cap off the evening with beer and tequila. The trio wandered into the Beach Market superette on Ena Road in Waikiki to purchase the liquor. When owner Suk Joo Kim (Kim) refused to sell the boys the liquor without proper identification, Defendant grabbed the bottle of tequila he had placed on the cash register counter and fled the store. Kim then pressed a silent alarm button and told the Dunn brothers to wait until the police arrived. The brothers, however, walked out of the store shortly thereafter. Kim then changed from slippers to sneakers, locked the store, and went looking for the boys. Eventually, he caught up with the two brothers in a parking lot about 100 meters from the store and asked them to sit down and wait on the sidewalk area. Charles Dunn remained seated, but Chance Dunn managed to run away.

Chance then found Defendant, and the two returned to Kim. Chance took the bottle from Defendant and placed it on a newspaper stand. When Kim asked for the bottle, Defendant picked up the bottle and held it out to Kim saying, "here is your bottle." A "very angry" Kim extended his hand to receive the bottle and said, "give me." August 8, 1991 Transcript at 14-15, 54-55, 177-178. At that point, Defendant thought that Kim was going to hit him. Defendant claims that he then swung the bottle in an attempt to deflect Kim's arm. However, Kim ducked and the bottle struck him on the head. The bottle broke, either when it struck Kim's head or when it fell to the ground after the blow.

The boys then fled in a panic and quickly hailed and jumped into a taxi. Subsequently, Kim caught up with the cab and jumped in front of it to block the boys' escape. The police arrived immediately thereafter and arrested Defendant and Charles.

After the boys were handcuffed, the police had them sit on the ground while awaiting transportation to the station. One of the officers remarked that there appeared to be blood on the shirts of all three boys. Defendant apparently overheard this statement and tried to "lick the blood" off his shirt. Defendant was ordered to stop and he did. August 8, 1991 Transcript at 131, and August 9, 1991 Transcript at 14.

On April 24, 1990, Defendant was indicted on the charge of Robbery in the First Degree, a violation of Hawaii Revised Statutes (HRS) § 708-840(1)(b)(i) (1985). After a jury trial in the First Circuit Court, Defendant was convicted as charged. Defendant was subsequently sentenced to eight years' incarceration as a youthful offender and ordered to pay $1,871.21 in restitution.

Defendant timely appealed, contending that the trial court committed reversible error in three respects. First, Defendant argues that there was insufficient evidence to find him guilty of First Degree Robbery. Defendant concedes that he may have been guilty of the separate offenses of theft and assault; however, Defendant insists that he is not guilty of the singular offense of robbery. Second, Defendant maintains that the trial court should have instructed the jury that they could have found him guilty of Assault in the Third Degree, which he contends is a lesser included offense of robbery. Finally, Defendant argues that the trial court should not have allowed the "blood-sucking" incident to be presented to the jury because such evidence was both prejudicial and irrelevant.

DISCUSSION

I.

Addressing, first, the admission of the blood-sucking evidence, we note initially that it is a well-settled rule that the trial court is vested with discretion regarding the admissibility of evidence at trial and such a decision will not be reversed absent an abuse. State v. Nakamura, 65 Haw. 74, 80, 648 P.2d 183, 187 (1982). The responsibility for maintaining the delicate balance between the probative value and prejudicial effect of any evidence lies largely within the discretion of the trial court, State v. Iaukea, 56 Haw. 343, 349, 537 P.2d 724, 729 (1975), and even where error occurs in the admission of evidence, there will be no reversal where, on the record as a whole, no prejudice to the appellant has resulted. State v. Nakamura, 65 Haw. at 80, 648 P.2d at 187.

Reviewed against this standard, we conclude that the trial court did not abuse its discretion by admitting testimony about the blood-sucking incident. The evidence was relevant to indicate Defendant's consciousness of his actions and his attempts to get rid of evidence that might link him to a crime. Any prejudicial effect that such testimony may engender does not, in our view, outweigh the relevancy of the testimony.

II.

Defendant also argues that the trial court erred in refusing to submit to the jury his requested Jury Instruction No. 7. That instruction reads as follows:

A person commits the offense of Assault in the Third Degree is [sic] he:

a) Intentionally, knowingly, or recklessly causes bodily injury to another person.

The issue of whether Third Degree Assault is a...