State v. Asuncion

• Decision Date: 30 March 2009
• Docket Number: No. 28230.,28230.
• Citation: 205 P.3d 577
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Chito ASUNCION, Defendant-Appellant.
• Court: Hawaii Court of Appeals

205 P.3d 577 STATE of Hawai'i, Plaintiff-Appellee,
v.
Chito ASUNCION, Defendant-Appellant. No. 28230. Intermediate Court of Appeals of Hawai`i. March 30, 2009.

[205 P.3d 578]

Okechukwu K. Amadi, Deputy Public Defender, State of Hawai'i, on the briefs, for Defendant-Appellant.

M. Kanani Laubach, Deputy Prosecuting Attorney, County of Hawai'i, on the briefs, for Plaintiff-Appellee.

WATANABE, PRESIDING J., FOLEY, and FUJISE, JJ.

Opinion of the Court by WATANABE, Presiding J.

This appeal stems from a judgment entered by the District Court of the Third

205 P.3d 579

Circuit¹ (district court) on October 4, 2006, convicting and sentencing Defendant-Appellant Chito Asuncion (Asuncion) for criminal contempt of court (criminal contempt) in violation of Hawaii Revised Statutes (HRS) § 710-1077 (1993), as a result of Asuncion's violation of a no-contact condition of his probation sentence. The criminal-contempt charge was filed against Asuncion after his probation period had expired and it was no longer possible to revoke probation.

Asuncion asserts that the district court: (1) erred in convicting him of criminal contempt because the proper penalty for violating a condition of probation is probation revocation; (2) unlawfully subjected him to an extension of his probation and additional punishment; and (3) erred in convicting him of criminal contempt because he was never given notice that if he violated a term or condition of his probation, he would be subject to a criminal-contempt charge after his probation period had expired.

We reverse the judgment.

BACKGROUND A.

The record in this case is rather sparse. However, it appears that on April 20, 2004 in Case No. H-74006, the district court convicted and sentenced Asuncion for custodial interference in the second degree (CI2) with respect to A.V., a minor, in violation of HRS § 707-727 (Supp.2008).² On July 6, 2004, the district court³ filed an order setting forth the terms and conditions of Asuncion's probation sentence (July 6, 2004 Order), which provided, in relevant part, as follows:

IT IS THE ORDER OF THE COURT that during the period of one year you shall comply in all respects with the MANDATORY TERMS AND CONDITIONS for probation sentences (* *stated in the back of this Order)[⁴] and/or the following special conditions:

....

X 3. You will be confined to the Hawai'i Community Correctional Center for 7 days; Mitt: forthwith

X 4. You will return to court for proof of compliance on September 13, 2004 @ 1:00 p.m.;

X 5. You will not violate further criminal laws;

X 6. You will pay crime injury compensation fee of $ 50;

X 7. You will pay probation fee of $ 75;

X 8. Other special terms and conditions:

a) Do not contact complainant, [A.V.,] without consent;[⁵]

b) Abide by terms & conditions of probation;

205 P.3d 580

c) Schedule appointment with Probation Division within one week[.]

(Footnote added.) The following acknowledgment, signed by Asuncion on May 19, 2004, appears at the bottom of the July 6, 2004 Order, below the judge's signature:

I, the undersigned defendant, acknowledge that the foregoing terms and conditions have been explained to me and I understand that if I violate them, my suspended sentence or probation may be revoked. If proceedings have been deferred under Chapter 853, or Section 712-1255, Hawai'i [sic] Revised Statutes, violation of the foregoing terms and conditions may result in the court accepting my guilty/no contest plea and sentencing me. I also acknowledge receipt of the written copy of the Mandatory and Special Conditions as ordered by the Honorable JP Florendo, Jr.

(Underscoring omitted.)

B.

On September 9, 2004, as a result of an incident that allegedly occurred on August 13, 2004, Asuncion was apparently arrested in Kona, Hawai'i and charged with CI2. On October 12, 2004, Asuncion was apparently arrested again for CI2. At the outset of Asuncion's trial, which commenced on March 22, 2006, Asuncion was orally charged,⁶ not with CI2, but with two counts of criminal contempt of court:

Mr. Asuncion, you're charged that: On or about the 13th day of August, 2004, in the District of South Hilo, County and State of Hawaii, you did knowingly disobey or resist the process, injunction, or other mandate of a court by pick—by contacting initials A.V., a minor, after having been ordered by the court to have no contact with initials A.V., a minor, thereby committing the offense of Contempt of Court, in violation of Section 710-1077(1)(g) of the Hawaii Revised Statutes.

....

... And on or about that date of August— October 12th, 2004, in the District of South Hilo, County and State of Hawaii, you did knowingly disobey or resist the process, injunction, or other mandate of the court by failing to appear in court after having been—after having signed a[n] order to appear, thereby committing the offense of Contempt of Court, in violation of Section 710-1077(1)(g)(iii)(b) of the Hawaii Revised Statutes.

At trial, the first witness called by the State was Brent O'Rear (O'Rear), Asuncion's probation officer. O'Rear testified that he had explained to Asuncion the terms and conditions of Asuncion's probation sentence, including the requirement that he not have contact with A.V. O'Rear also stated that he "imagine[d]" that he had met with Asuncion "maybe four times" while Asuncion was on probation and Asuncion had never asked for permission to see A.V.

Punnette Haunani Yorong (Yorong), A.V.'s grandmother, testified next. She explained that on August 13, 2004, A.V. was sixteen years old, and because there had been some problems in Kona involving custodial interference, A.V.'s mom had sent A.V. to live with Yorong in Hilo. Yorong testified that on the morning of August 13, 2004, she received a phone call from another daughter, Desseire, who reported that A.V. had been seen at an apartment in Pu'u'eo. Following the call, Desseire picked up Yorong, and they went to the apartment in Pu'u'eo and waited in the stairwell for A.V. to come out. After about half an hour to forty-five minutes, A.V. and Asuncion "both came out of the apartment."

Yorong testified that she waited until A.V. and Asuncion were in the parking lot and then called A.V. by name. According to Yorong, A.V. was "very shocked that they were caught" and Asuncion "gave us a look, he jumped in his car and went out of the parking area." Yorong stated that she did not give A.V. permission to see Asuncion. Upon questioning by the deputy prosecutor, Yorong further explained as follows:

205 P.3d 581

Q. And did you ever give [Asuncion] permission to see [A.V.]?

A. No. We asked him to stop.

Q. So did he ever call your house asking for permission to—

A. Oh, yes. He was calling quite often.

Q. Okay. And you talked to him?

A. Couple times.

Q. What—what did you tell him?

A. I just asked him to stay away from her because she was too young. She's 16. He was 28.

Q. What did he say to you?

A. That they both loved each other. They wanted to still be with each other.

Q. But did you at any time give him permission—

A. No. Never.

Q. So on August 13, 2004, did you give [Asuncion] permission to be with [A.V.] at Val-Hala Apartments?

A. No, I didn't. She was suppose [sic] to have been at work.

Q. How did she get to work?

A. That day Desiree [sic], my daughter, dropped [A.V.] off at work. [A.V.] said she worked at 10.

Q. And did you find out what time she was suppose [sic] to start?

A. Uh, [A.V.] actually was suppose [sic] to start at 11.

On cross-examination, Yorong stated that she was made A.V.'s guardian by A.V.'s mother in January 2004, which allowed Yorong "to arrange medical treatment for [A.V.]." Yorong stated she was never made a foster parent for A.V. Yorong also agreed that when A.V. and Asuncion came out of the apartment, Asuncion was not restraining A.V. in any way.

The State's final witness was Desseire, A.V.'s aunt. She testified that on the morning of August 13, 2004, she dropped A.V. off at work between 9:30 a.m. and 10:00 a.m. Subsequently, she received a phone call from a friend who had spotted A.V. at the Val-Hala Apartments. Desseire stated that she called her mom, Yorong, to "let her know what my friend had seen" and "picked up [Yorong] from work and went to the apartment to see if it was [A.V.]." Desseire explained that after arriving at the Val-Hala Apartments, she and Yorong "waited in the stairwell closest to the end of the building" for "[m]aybe about 15, 20 minutes." Thereafter, she and Yorong saw Asuncion and A.V. "walk out together towards the vehicle. I'm assuming he was taking her to work." According to Desseire, Yorong "then yelled for [A.V.]" and "[A.V.] stopped in shock." A.V. then walked towards Yorong, Asuncion smiled and drove away, and Yorong called the police for help.

Following the presentation of the State's evidence, the State orally moved to nolle prosequi the second criminal contempt charge against Asuncion. Additionally, Asuncion orally moved for a judgment of acquittal, arguing, in relevant part, as follows:

The State has presented no evidence whatsoever of a valid court order which ordered [Asuncion] not to have contact with [A.V.]. What the State did present to the Court was a[n] order of probation. An order of probation with terms and conditions. One term and condition was that he have no contact. And we would submit to the Court that based on the evidence presented to the Court, what the State has proven is merely a violation of his probation. And what the State is attempting to do is to remedy the fact that no revocation was initiated prior to the termination or expiration of his probation period. And they have done that by extending—basically extending the period of probation by charging him with a contempt of court which has a—I believe a two-year statute of limitations. So in effect they've effectively extended his probation for two additional years to go back and charge him for violation of his probation.

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