State v. Correia, CAAP-18-0000895

CourtCourt of Appeals of Hawai'i
PartiesSTATE OF HAWAI'I, Plaintiff-Appellant, v. JOSEPH CORREIA III, Defendant-Appellee
Docket NumberCAAP-18-0000895
Decision Date30 June 2022

STATE OF HAWAI'I, Plaintiff-Appellant,
v.

JOSEPH CORREIA III, Defendant-Appellee

No. CAAP-18-0000895

Intermediate Court of Appeals of Hawaii

June 30, 2022


APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NO. 1FFC-17-0000591)

On the briefs:

Steven K. Tsushima,

Deputy Prosecuting Attorney,

City & County of Honolulu, for Plaintiff-Appellant.

Emmanuel G. Guerrero

(Law Offices of Emmanuel G. Guerrero, LLLC) for Defendant-Appellee.

HIRAOKA AND WADSWORTH, JJ., AND GINOZA, CHIEF JUDGE, DISSENTING

OPINION

WADSWORTH, J.

Plaintiff-Appellant State of Hawai'i (State) appeals from the "Order Denying [Defendant-Appellee Joseph Correia III's (Correia)] Motion for New Trial; Entry of Dismissal as to Count 1" (Order 1) and the "Order of Dismissal of Count 1 Abuse of Family or Household Members ([Hawaii Revised Statutes (HRS) §] 709-906(1) and (9))" (collectively, Dismissal Orders), entered on October 19, 2018, by the Family Court of the First Circuit (Family Court).[1]

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Following a jury trial, Correia was found guilty on Count 1 of Abuse of Family or Household Members in the Presence of a Household Member Less Than 14 Years of Age, and guilty on Count 2 of Abuse of Family or Household Members. The Family Court subsequently ruled that Counts 1 and 2 merged, and ordered dismissal of Count 1 due to instructional error.

On appeal, the State contends that the Family Court erred in dismissing Count 1. The State requests that this court vacate the Dismissal Orders and remand the case for a new trial on Count 1.

We hold that the State's appeal is moot because we cannot provide effective relief in the unusual circumstances of this case. Even if we were to vacate the Dismissal Orders and remand the case to the Family Court, Correia could not be convicted on Count 1, because a final and non-appealable judgment of conviction was entered on Count 2 based on the same conduct. The principles of double jeopardy, as set forth in HRS § 701-109(1)(a) and (4), therefore bar a conviction on any retrial of Count 1. Accordingly, this appeal is moot and must be dismissed for lack of subject matter jurisdiction.

I. Background

On July 10, 2017, Correia was charged with: (1) Abuse of Family or Household Members, in violation of HRS § 709-906(1) and (9)[2] (Count 1 or Abuse of Family or Household Members in the

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Presence of a Household Member Less Than 14 Years of Age); and (2) Abuse of Family or Household Members, in violation of HRS § 709-906(1) and (8)[3] (Count 2 or Abuse of Family of Household Members - Impeding Breathing or Circulation). The charges stemmed from an incident in which Correia allegedly assaulted his wife, the complaining witness, in the presence of their seven-year old daughter.

Following a jury trial, Correia was found guilty as charged on Count 1, a class C felony, and guilty of the included offense of Abuse of Family or Household Members on Count 2, a misdemeanor.

On August 28, 2018, Correia filed a motion for a new trial, contending in part that the jury instructions as to Count 1 were erroneous as to element four of the offense. Correia argued that the instructions "allowed the jury to find that [Correia] was 'reckless' as to his state of mind as to the presence of the minor[,]" when HRS § 706-606.4 required a "knowing" state of mind.

The State opposed Correia's motion for a new trial, arguing that the jury instructions as to Count 1 were correct and that Counts 1 and 2 merged. The State did not argue in the alternative for a new trial on Count 1, i.e., in the event the Family Court ruled that the jury instructions as to Count 1 were erroneous.

On October 19, 2018, pursuant to the Dismissal Orders, the Family Court denied Correia's motion for a new trial, but sua

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sponte granted dismissal of Count 1. The Family Court reasoned in part:

3. While the court agrees that the instruction on Count 1 was erroneous, this does not mean that no conviction can be had on Count 1, nor that a new trial is warranted. The error in this instruction means that the facts required for sentencing enhancement under HRS § 706-606.4, were not properly found by the jury, and the sentencing enhancement must be set aside
4. Therefore, the jury's finding of physical abuse under HRS § 709-906, with no felony sentencing enhancement for "in the presence of a minor", still stands, and supports a conviction for the misdemeanor offense of Abuse of Family or Household Members. On Count 1, the court thus finds that the misdemeanor Abuse offense conviction still stands, and is appropriate.
. . . .
6. Based on the jury's responses to the merger interrogatories, however, Counts 1 and 2 do merge. Based on the jury's findings supporting merger, and in light of this court's disposition of Count 1 above reducing the offense to a misdemeanor, the Court enters a dismissal of Count 1. Defendant will be sentenced only on Count 2, at sentencing.

The State did not move for reconsideration of the dismissal of Count 1 or otherwise seek a new trial on Count 1.

On October 25, 2018, the Family Court entered the Judgment of Conviction and Probation Sentence (Judgment), convicting Correia on Count 2, Abuse of Family or Household Members, in violation of HRS § 709-906 (1) and (5).[4] Correia was sentenced to two years of probation, subject to certain terms and conditions, including that he serve a 180-day term of imprisonment. On the same date, the Family Court entered an Order Pertaining to Bail Pending Appeal, which stated in part: "If a Notice of Appeal is filed, then bail is set in the amount of $1,000.00 during the pendency of appeal, until a Judgment on Appeal is entered." On November 16, 2018, the State filed a timely notice of appeal from Order 1, as well as an amended notice of appeal challenging both Dismissal Orders.

On November 17, 2018, Correia filed a notice of appeal from the Judgment, initiating case no. CAAP-18-0000897. There is no indication in the record, however, that Correia posted bail

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pursuant to the Order Pertaining to Bail Pending Appeal, and the State's January 4, 2019 statement of jurisdiction in this appeal (i.e., case no. CAAP-18-0000895) asserts: "Based on the State's files and records, it is the State's belief and understanding that [Correia] is in custody in the case on appeal."[5] On December 17, 2018, Correia filed a Stipulation for Voluntary Dismissal of the Appeal in case no. CAAP-18-0000897. On January 4, 2019, this court entered an Order Approving Stipulation for Voluntary Dismissal of the Appeal, pursuant to which Correia's appeal was dismissed and the judgment of conviction on Count 2 became final.

II. Discussion

The State contends that the Family Court erred in sua sponte ordering dismissal of Count 1, because the proper remedy for instructional error was to vacate the conviction as to Count 1 and to order a new trial on that count. Based on this contention, the State requests that this court vacate the Dismissal Orders and remand the case for a new trial on Count 1.

In response, Correia argues in part that this court does not have jurisdiction because HRS § 641-13 "does not allow the State to appeal from orders dismissing charges that have merged with other charges for which the defendant has been found guilty by a jury." Relatedly, Correia argues that the double jeopardy clause precludes a retrial in these circumstances. The State, which elected not to file a reply brief, has not responded to these arguments.

"In general, 'this court does not have jurisdiction to decide abstract propositions of law or moot cases.'" State v. Nakanelua, 134 Hawai'i 489, 501, 345 P.3d 155, 167 (2015) (brackets omitted) (quoting Lathrop v. Sakatani, 111 Hawai'i 307, 312, 141 P.3d 480, 485 (2006)). "[A] case is moot if the reviewing court can no longer grant effective relief." Kaho'ohanohano v. State, 114 Hawai'i 302, 332, 162 P.3d 696, 726 (2007) (emphasis omitted)

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(quoting Kemp v. State of Hawai'i Child Support Enforcement Agency, 111 Hawai'i 367, 385, 141 P.3d 1014, 1032 (2006)). "[M]ootness is an issue of subject matter jurisdiction[,]" Hamilton ex rel. Lethem v. Lethem, 119 Hawai'i 1, 4, 193 P.3d 839, 842 (2008), and we must raise the issue sua sponte, Kapuwai v. City & Cty. of Honolulu, 121 Hawai'i 33, 40, 211 P.3d 750, 757 (2009) (concluding that "if the parties do not raise the issue of a lack of subject matter jurisdiction, a court sua sponte will." (brackets omitted) (quoting Tamashiro v. Dep't of Human Servs., State of Hawai'i, 112 Hawai'i 388, 398, 146 P.3d 103, 113 (2006))).

The State's appeal from the Dismissal Orders is moot because we cannot provide effective relief in these circumstances. Even if we were to vacate the Dismissal Orders and remand this case to the Family Court, Correia could not be convicted of the offense - Abuse of Family or Household Members in the Presence of a Household Member Less Than 14 Years of Age -which the State seeks to retry.[6] See HRS § 701-109(1) and (4) (Supp. 2018) (quoted infra).

The State is correct that "once instructional error is demonstrated, we will vacate . . ., if there is a reasonable possibility that the error contributed to the defendant's conviction[.]" State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006). In such circumstances, we generally remand the case for a new trial, unless we determine that substantial evidence does not support the conviction or that retrial is otherwise barred. See, e.g., State v. Kalaola, 124 Hawai'i 43, 62, 237 P.3d 1109, 1128 (2010) (affirming the ICA's judgment, which vacated the defendant's conviction due to instructional error and remanded for a new trial, where the supreme court determined that sufficient evidence supported the conviction based on part of the defendant's conduct, and double jeopardy did not bar retrial with regard to that conduct).

Here, however, we are not asked to...

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