State v. Baxley

• Decision Date: 29 July 2003
• Docket Number: No. 22805.,22805.
• Citation: 73 P.3d 668,102 Haw. 130
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. James Gavin BAXLEY, Defendant-Appellant.
• Court: Hawaii Supreme Court

73 P.3d 668

102 Haw. 130

STATE of Hawai`i, Plaintiff-Appellee, v. James Gavin BAXLEY, Defendant-Appellant.

No. 22805.

Supreme Court of Hawai`i.

July 29, 2003.

Walter R. Schoettle, on the briefs, Honolulu, formerly for defendant-appellant.

Tae Chin Kim, Honolulu, counsel of record for defendant-appellant.

Donn Fudo, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON and NAKAYAMA, JJ., Circuit Judge ALM, Assigned by Reason of Vacancy, and ACOBA, J., Dissenting in Part and Concurring in Part.

Opinion of the Court by NAKAYAMA, J.

Defendant-Appellant James Gavin Baxley appeals from his acquittal, the Honorable Frances Q.F. Wong presiding, of attempted assault in the second degree, Hawai`i Revised Statutes (HRS) §§ 705-500 (1993)¹ and 707-711(1)(d) (1993)² (Count I), terroristic threatening in the first degree, HRS § 707-716(1)(d) (1993)³ (Count II), and kidnapping, HRS § 707-720(1)(e) (1993)⁴ (Count III), on the ground of lack of penal responsibility pursuant to HRS § 704-400 (1993).⁵ Baxley argues that the circuit court: (1) erred by acquitting him of Count III, kidnapping, on the ground of mental disease, disorder, or defect excluding penal responsibility when there was insufficient evidence to prove the elements of kidnapping in the first instance; (2) erred by refusing to admit evidence regarding the possible existence of a surveillance videotape of the incident; (3) plainly erred by relying on records and materials gathered by the Adult Probation Division regarding his mental examination; and (4) erred by finding that, but for the victim's actions, she would have suffered substantial bodily injury and/or death. We hold that this court lacks jurisdiction over this appeal and, therefore, dismiss Baxley's appeal.

I. BACKGROUND

On January 11, 1999, Baxley was charged with attempted assault in the second degree, terroristic threatening in the first degree, and kidnapping for allegedly trapping and threatening to mutilate and kill Michelle Marciel, a 7-Eleven employee, on December 26, 1998.

On January 27, 1999, Baxley filed a motion giving notice that he would be relying on the defense of mental disease, disorder, or defect excluding penal responsibility [hereinafter, "insanity"] pursuant to HRS § 704-404 (1993 & Supp.1999).⁶ The court, upon Baxley's motion, ordered a mental evaluation to determine whether Baxley was fit to proceed to trial. Pursuant to HRS § 704-404, the court appointed three qualified persons to examine Baxley's mental condition. All three medical examiners found Baxley fit to proceed to trial. However, they also found that Baxley had a history of mental disorder and recommended that the court commit Baxley to the Hawai`i State Hospital for treatment. On May 24, 1999, the court found Baxley was fit to proceed with trial.

On June 2, 1999, Baxley filed a motion to dismiss the attempted assault and kidnapping charges, premised on the contention that the evidence was insufficient to support the charges. Baxley asserted that a surveillance camera was located on the premises, and the police neglected to obtain the videotape. He sought to introduce evidence that the tape existed and that it contained potentially exculpatory evidence, which would demonstrate that Baxley may not have made "jabbing" motions with the knife, thereby negating one of the elements of attempted assault. At the hearing on the motion, the 7-Eleven manager testified that the surveillance camera had not been working for approximately a year prior to and on the date of the incident involving Baxley. Moreover, the manager stated that the camera was located in a secured box and the key to open the box had been missing for an indeterminate time. Baxley argued that, with regard to the kidnapping charge, there was no evidence that he restrained Marciel or commanded that she enter and remain in the back storage room. No witnesses were called and no evidence was adduced at the hearing to support this argument. On July 30, 1999, the court denied Baxley's motion to dismiss and ruled that it would not disturb the preliminary hearing finding that probable cause existed to show Baxley committed attempted assault, terroristic threatening, and kidnapping. The court also found that there was no evidence that a videotape existed, and thus there was no videotape for the police to recover.

At the jury-waived trial, the following evidence was adduced. On December 26, 1998, Baxley walked into the 7-Eleven store, picked up a 40-ounce bottle of beer, and walked out of the store ignoring the assistant manager's request that Baxley pay for the beer. The assistant manager called the police to report the theft. At approximately 10:00 p.m., police officers returned to the store with Baxley and asked the employees if Baxley was the man they observed taking the beer. After positively identifying Baxley, the police officers made Baxley pay for the beer, escorted Baxley out of the store and told him not to return. Later that same evening, Baxley returned. Marciel was behind the counter at the cash register when she observed Baxley entering the store. Marciel immediately called 911. Baxley entered the store, walked directly toward Marciel and stated, "Give me my fucking tape player." Baxley demanded that Marciel return his tapes and his tape player. Marciel did not know what Baxley was talking about and told Baxley so. Baxley eventually pulled a knife, with a three-inch blade, out of his pocket and stated, "What would you do if I fucking killed you?" Baxley proceeded to climb up on the counter, "jabbed" the knife in Marciel's direction several times, and threatened to kill her. Marciel eventually crouched behind the counter, crawled out from under the counter, and headed to the safety of the back storage room where she could shut a door, keep Baxley out, and still have a limited view of Baxley and the store. Baxley approached the door and Marciel could hear Baxley threatening to mutilate her if she called the police. Marciel did not attempt to escape out the rear service door because the area behind the store was enclosed by three walls. If Baxley arrived at the back first, Marciel would have been trapped outside with no escape route.

The court also heard testimony from Olaf Gitter, Ph.D., who was appointed by the court to examine Baxley. Dr. Gitter opined that Baxley was "cognitively and volitionally and substantially impaired at the time of the alleged offenses." Dr. Gitter diagnosed Baxley as suffering from schizophrenic disorder, alcohol dependence, and adverse reaction to medication. He recommended that Baxley be committed to the state hospital for treatment.

At the end of the prosecution's case, Baxley moved for a judgment of acquittal on the ground of insufficient evidence for the attempted assault and kidnapping charges. The court denied Baxley's motion and subsequently acquitted Baxley of all charges on the ground of insanity pursuant to HRS § 704-400. Judgment was entered on August 25, 1999 and Baxley timely appealed.

II. STANDARD OF REVIEW

A. Jurisdiction

"The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard." Lester v. Rapp, 85 Hawai`i 238, 241, 942 P.2d 502, 505 (1997) (quoting State ex. rel. Bronster v. Yoshina, 84 Hawai`i 179, 183, 932 P.2d 316, 320 (1997)).

B. Sufficiency of the evidence

[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.

State v. Young, 93 Hawai`i 224, 230, 999 P.2d 230, 237 (2000) (citations omitted) (brackets in original).

State v. Valdivia, 95 Hawai`i 465, 471, 24 P.3d 661, 667 (2001). We have stated that 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." State v. Jenkins, 93 Hawai`i 87, 99, 997 P.2d 13, 25 (2000).

III. DISCUSSION

Baxley argues that the circuit court erred by (1) acquitting him of Count III, kidnapping, on the ground of insanity, (2) refusing to admit evidence regarding the possible existence of a surveillance videotape of the incident, (3) relying on records and materials gathered by the Adult Probation Division regarding his mental examination, and (4) finding that, but for the victim's actions, she would have suffered substantial bodily injury and/or death.

Because Baxley would remain committed to the custody of the Director of Health based on the circuit court's acquittals as to Counts I and II, which were supported by substantial evidence that would have warranted convictions but for Baxley's affirmative defense of insanity, and because Baxley has not challenged the sufficiency of the evidence supporting Counts I and II on appeal, he is not aggrieved by the circuit court's acquittal of Count III, and, therefore, this court lacks jurisdiction to address the sufficiency of evidence supporting Count III. Moreover, this court lacks jurisdiction over the consideration of the Adult Probation Division records because there is no statutory provision that allows the issue of dangerousness to be appealed directly to this court following an acquittal.

A. Because Baxley is not aggrieved, this court lacks appellate jurisdiction to review Baxley's appeal from an acquittal by reason of insanity.

Appellate jurisdiction "in a criminal case is purely statutory and exists only when given by some constitutional or statutory provision." State v. Kalani, 87 Hawai`i 260, 261, 953 P.2d 1358, 1359 (1998) (quoting State v. Fukusaku, 85 Hawai`i 462, 490, 946 P.2d 32, 60 (19...