State v. Gabrillo

• Decision Date: 27 July 1994
• Docket Number: No. 16745,16745
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Jonas B. GABRILLO, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 891

877 P.2d 891

10 Haw.App. 448

STATE of Hawai'i, Plaintiff-Appellee, v. Jonas B. GABRILLO, Defendant-Appellant.

No. 16745.

Intermediate Court of Appeals of Hawai'i.

July 27, 1994.

Syllabus by the Court

The question on appeal from an order denying a motion for judgment of acquittal is whether there is sufficient evidence to support a prima facie case.

The determination of whether there is sufficient evidence to support a prima facie case requires an evaluation of the evidence as it relates to the elements of the crime charged.

The Hawai'i Penal Code, Hawai'i Revised Statutes Title 37, establishes two classes of defenses, affirmative defenses and defenses not denominated as affirmative.

A criminal defense is a fact or set of facts which negatives penal liability.

Affirmative defenses are those designated by the Hawai'i Penal Code or another statute or defenses which the Hawai'i Penal Code or another statute plainly requires the defendant to prove by a preponderance of the evidence.

The defense that someone other than the defendant confessed to the offense is not an affirmative defense.

The alibi defense, i.e., evidence that the defendant was not present at the time of the crime, is not an affirmative defense.

If affirmative defenses are not involved and the defendant introduces evidence of a defense, the defendant becomes entitled to an acquittal if the trier of fact finds that the evidence introduced by the defendant, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant's guilt.

Where the defense is not an affirmative defense, the defendant need only raise a reasonable doubt as to his guilt.

The prosecutor's burden is to prove beyond a reasonable doubt facts negating the defense. The prosecution does this when the jury believes its case and disbelieves the defense.

Evidence that another person confessed to the offense or evidence that the defendant was not present at the crime raises issues going to reasonable doubt, and like other issues going to reasonable doubt, is generally a matter for the fact finder to determine.

On appeal, this court will not attempt to reconcile conflicting evidence or interfere with a jury decision based on the credibility of witnesses or the weight of evidence.

The weight given by the jury to evidence that someone other than the defendant confessed to the crime or that the defendant was at a place other than the crime scene is not ordinarily subject to review on appeal.

If there is substantial evidence which supports the fact finder's conclusion affirmance is required; conversely, the absence of such substantial evidence requires reversal of the conviction.

Richard T. Pafundi, on the brief, Honolulu, for defendant-appellant.

Alexa D.M. Fujise, Deputy Prosecuting Atty., City & County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

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

ACOBA, Judge.

Defendant-Appellant Jonas B. Gabrillo (hereinafter Defendant) was convicted by a jury of Robbery in the Second Degree in violation of Hawai'i Revised Statutes (HRS) § 708-841(1)(A) (SUPP.1992). HRS¹ § 708-841(1)(a) states "[a] person commits the offense of robbery in the second degree if, in the course of committing theft: (a) He uses force against the person of anyone present with the intent to overcome that person's physical resistance or physical power of resistance[.]" The judgment of conviction was filed on December 11, 1992 and Defendant was sentenced to five years' probation with special conditions.

At the trial the following evidence was adduced. This incident occurred on February 6, 1990, in Kalihi, on the island of O'ahu. According to Lini Leslie (hereinafter Lini), the complaining witness, and Lyla Leslie (hereinafter Lyla), his sister, they had walked from the Pay 'N' Save store in the Dillingham Shopping Center to a bus stop on Dillingham Boulevard. The bus stop fronts a Hawai'i Check Cashing establishment and is across the street from a McDonald's restaurant. At the bus stop was a concrete bench with a roof supported by two metal poles. Lyla sat on the west or " 'Ewa" side of the bench and Lini sat on the east or "Diamond Head" side of the bench. As he sat looking " 'Ewa" for the bus, Lini felt a punch to the right side of his head. The punch caused his head to strike the metal pole making his head hurt and his ears ring. As a result of the force of the punch, Lini dropped the four video tapes that he was carrying. After yelling obscenities, Defendant picked up one of the video tapes and ran away. With Defendant was a man known to Lini and Lyla as "Scarface."

Lini and Lyla positively identified Defendant as the person who hit Lini and took the tape. After the blow, Lini was able to look at Defendant's face for thirty to forty-five seconds. Lini saw the tattoos on Defendant's forearm. Prior to the offense, Lini had seen him at the Kalakaua gym five to six times a week for a period of one and one-half years. Lini knew him by face and name.

Lyla had also known Defendant prior to the offense. She had seen him three to four times a week at school during the prior year. She saw Defendant punch her brother. From a "couple" of feet away, she could see the tattoos on his forearm and bicep. She had seen the tattoos before that night.

Although it was 6:45 p.m. or 7:00 p.m., both Lini and Lyla could clearly see Defendant because it was dusk and there were streetlights and lighting from the Hawai'i Check Cashing establishment. Both agreed that he was wearing a black shirt with the sleeves cut off. Lini vaguely remembers Defendant wearing black and yellow shorts. Lyla clearly remembers Defendant wearing long black pants. Defendant displayed the tattoos on his arm to the jury at the request of the State.

Defendant's defense was that his uncle Leo Gabrillo (hereinafter Leo) was the one who punched Lini. Leo refused to testify on the ground that his testimony might incriminate him. At the prosecution's request, Leo showed his arms to the jury.

An investigator with the Department of Prosecuting Attorney for the City and County of Honolulu, called as a witness for the defense, testified that he had tape recorded a conversation with Leo. Leo told the investigator that he and four other persons, including Defendant, were sitting in a car in the McDonald's restaurant parking lot. Then Leo and "Scarface" got out of the car. As Leo and "Scarface" were walking by the bus stop that fronts the Hawai'i Federal Credit Union office, Leo punched someone following him who he thought was his "enemy." Leo stated that he did not know who he punched until someone told him three days later that it was Lini. During his conversation with the investigator, Leo first said that he did not remember if the person he punched was carrying anything. Later he said that a video tape had fallen and "Scarface" had told him to go back and get the tape, which he did.

The investigator testified that the bus stop Leo identified was about a block away from the bus stop where Lini and Lyla indicated the incident took place, and that it consisted of concrete benches set back five to seven feet from a telephone pole.

Defendant called two witnesses who testified they were in the car with Leo, "Scarface," and Defendant that night. The witnesses testified that Leo and "Scarface" exited the car and Defendant got into the driver's seat. Defendant then drove around for five to ten minutes before they found Leo and "Scarface." As he entered the car, Leo said that he had punched someone. Their accounts varied as to where the car was parked when Leo and "Scarface" left and where they picked up Leo and "Scarface."

The Defendant contends that his motions for judgment of acquittal should have been granted and that there was "insufficient" evidence to support the verdict.

I.

The standard on appeal from an order denying a motion for judgment of acquittal is whether there was " 'sufficient evidence to support a prima facie case. The evidence must enable a reasonable mind fairly to conclude guilt beyond a reasonable doubt, giving full play to the right of the factfinder [sic] to determine credibility, weigh the evidence, and draw justifiable inferences of fact.' " State v. Smith, 59 Haw. 456, 460, 583 P.2d 337, 341 (1978) (quoting State v. Rocker, 52 Haw. 336, 245-46, 475 P.2d 684, 690 (1970)). The determination of whether there was sufficient evidence to support a prima facie case requires an evaluation of the evidence as it relates to the elements of the crime charged. Id.

There was evidence here which satisfied the essential elements of robbery in the second degree. Lini and Lyla provided direct eyewitness testimony that Defendant used force against Lini's person by punching Lini in the head in the course of taking a video tape from Lini. Defendant's intent to overcome Lini's physical power of resistance may justifiably be inferred from the act of striking Lini.

Clearly, the evidence was sufficient to "support a prima facie case." Id. Hence, the trial court did not err in denying the acquittal motions.

II.

Defendant contends the evidence was "insufficient" to convict him because there was evidence that "someone other than Defendant confessed to the crime" and his presence at a place other than at the crime scene was "supported by two alibi witnesses." ²

A.

We consider the nature of Defendant's defenses first. The Hawai'i Penal Code, HRS Title 37, "establishes two classes of defenses[,]" affirmative defenses and defenses not denominated as affirmative. ³ Commentary on HRS § 701-115 (1985). "A [criminal] defense is a fact or set of facts which negatives penal liability." HRS § 701-115 (1985). Affirmative defenses are those "so designated by the [Hawai'i Penal] Code or another statute; or ... [defenses which] the [Hawai'i Penal] Code or another statute plainly require[ ] the defendant to prove ... by a preponderance of the...