State v. Halemanu
| Decision Date | 31 August 1982 |
| Docket Number | No. 8115,8115 |
| Citation | 650 P.2d 587,3 Haw.App. 300 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Cornwell H. S. HALEMANU, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. A defendant who presents evidence, after his Rule 29, Hawaii Rules of Penal Procedure, motion for judgment of acquittal made at the close of the State's evidence was denied, thereby waives any error in the prior denial of his motion for acquittal.
2. On appeal of the denial of a motion for judgment of acquittal made at the close of all the evidence, the standard of review is whether, upon the evidence, giving full play to the right of the trier of fact to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.
3. Although an error in the instructions to which no objection is made at trial may not be assigned as error on appeal and an error in the instructions which is not properly cited in the points on appeal will not be considered on appeal, appellate courts may notice plain errors or defects affecting substantial rights although they were not brought to the attention of the court.
4. When jury instructions (or the omission thereof) are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudically insufficient, erroneous, inconsistent, or misleading.
5. An indictment alleges all of the essential elements of the offense charged if said elements appear in any form or by fair construction can be found therein.
Edward K. Harada, Law Student Intern, and Alvin T. Sasaki, Deputy Public Defender (Jonathan J. Ezer, Deputy Public Defender, on reply brief), for defendant-appellant.
Vicente F. Aquino, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., HEEN, J., and Circuit Judge ACOBA assigned by reason of vacancy.
Defendant-Appellant Cornwell H.S. Halemanu (Halemanu) appeals the jury's verdict finding him guilty of robbery in the first degree and kidnapping.
Halemanu contends:
I. That the lower court erred in denying his Rule 29, Hawaii Rules of Penal Procedure (1977) (HRPP), motion for judgment of acquittal made at the close of the State's evidence.
II. That the lower court erred in denying his Rule 29, HRPP, motion for judgment of acquittal made at the close of all the evidence.
III. That Count II of the indictment failed to state an offense and therefore must be dismissed.
We affirm.
At the trial in September 1980, seventeen-year-old Garrett Arashiro testified:
On January 28, 1980, he was in his car (a 1974 Pontiac Ventura with a "souped up engine") on Mott-Smith Drive waiting for the light to permit him to enter Nehoa Street. Halemanu leaned into the window of Arashiro's car from the passenger side and asked for a [cigarette] light. Arashiro handed him the car lighter and Halemanu lit his cigarette. Then, Halemanu reached in, unlocked the door, and got in. When Arashiro questioned Halemanu as to what he was doing, Halemanu told Arashiro "never mind" and asked him if he had any "dope." Arashiro answered no. Halemanu then told Arashiro to drive and started looking through the car's glove compartment. On Nehoa Street, Arashiro stopped the car. Halemanu again asked if he had any "dope." Arashiro again answered no. Halemanu kept searching through the glove compartment. Arashiro asked him to leave, but was told that Halemanu would tell him where to drive and that he was to drive where Halemanu told him to. Because of Halemanu's appearance, actions, and tone of voice, Arashiro was scared. Arashiro drove into Manoa into a parking lot where Halemanu told him to park. Halemanu continued to search through the glove compartment, questioning Arashiro about its contents. Arashiro noticed that Halemanu had a folding razor in his left hand which was on his leg. Arashiro did not testify whether it was unfolded or folded. Halemanu asked Arashiro to give him his wristwatch, and Arashiro gave it to him. Halemanu exited the car and told Arashiro to get out also. Halemanu opened the trunk and searched through it and its contents. He asked Arashiro if it contained any "dope," and Arashiro answered no. Halemanu got back into the car but this time in the driver's seat and told Arashiro to get in, which he did. Halemanu found a pair of glasses on the car's visor and put them on. Halemanu asked Arashiro if he saw Halemanu's "blade" and began searching for it but found it in his pocket. Halemanu began driving in a hotrod fashion and left Manoa. While on Punahou Street, Halemanu told Arashiro not to try anything, not to wave to anyone or to try to get anyone's attention. From Nehoa Street, he drove up Tantalus Drive, fishtailing and driving fast. They came down Tantalus Drive through Papakolea, and at that point Halemanu asked Arashiro if he had any money and Arashiro answered no. Halemanu drove toward Liliha, by Chun Hoon Super Market, and when Arashiro saw some of his friends, Halemanu told him not to try anything and not to get their attention. Halemanu then entered onto the freeway heading in the Ewa (south) direction. When they passed Halawa, Arashiro noticed the speedometer read 105 miles per hour. Later, as Halemanu headed for Waianae, Arashiro noticed that the speedometer then read about 120 miles per hour. When Arashiro informed Halemanu that the car did not have enough fuel to make it to Waianae and back, Halemanu crossed the grassy medial strip and headed back towards Honolulu at a high rate of speed. He entered Sand Island, parked the car, and reopened the trunk. He pulled out a can of carburetor cleaner and a rag, sprayed the cleaner on the rag, and sniffed it. Then he instructed Arashiro not to try "anything funny" and to drive him back to Anianiku Street in Papakolea. Upon reaching Anianiku Street, Arashiro stopped the car and turned off the engine. A couple of Arashiro's friends saw him, suspected something was wrong, and came to his aid. After Arashiro told them what happened, they retrieved Arashiro's watch from Halemanu and sent him on his way.
Halemanu, 21 years old, testified and admitted that Arashiro did not give him permission to enter the car or to drive; that Arashiro told him to leave but that he did not because "[h]e didn't come to a complete stop and he didn't sound like he really wanted me to leave"; that he told Arashiro, ; that he was carrying the razor "for [his] own protection"; that while in the car, he "was playing with" the razor but did not threaten Arashiro with it; that he never threatened Arashiro; that he told Arashiro not to try to signal for help; that he sprayed the rag and sniffed it without Arashiro's permission; that ; that "[i]t's just at the time when I was in the car that I was feeling like I was a loser since the time I got in the car so I really didn't care what I was saying because I knew I was going to get caught for what I did."
The jury was instructed on the offenses of kidnapping, unlawful imprisonment in the second degree, robbery in the first degree, and terroristic threatening in the second degree.
Halemanu contends that the lower court erred in denying his Rule 29, HRPP, motion for judgment of acquittal made at the close of the State's evidence. After this motion was denied, Halemanu testified. Consequently, we must decide whether the introduction of evidence by Halemanu after his motion was denied was a waiver of that motion. This issue appears to have been present in State v. Alfonso, 64 Haw. ---, 648 P.2d 696 (1982); State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), but was not discussed. There is authority on both sides of this question. See 8A Moore's Federal Practice: Criminal Rules p 29.05 (1981); 2 Wright, Federal Practice and Procedure: Criminal § 463 (1969).
We agree with the authority which favors application of the waiver doctrine in situations such as in this case and hold that when Halemanu testified, he waived any error in the prior denial of his motion for acquittal.
Halemanu contends that the lower court erred in denying his Rule 29, HRPP, motion for judgment of acquittal made at the close of all the evidence.
Upon an appeal of the denial of such a motion for judgment of acquittal, the issue before this court is whether, upon the evidence, giving full play to the right of the trier of fact to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Rocker, supra; State v. Manipon, 2 Haw.App. 499, 634 P.2d 598 (1981). Stated another way, the issue is whether the record contains substantial evidence to support the decision. State v. Summers, 62 Haw. 325, 614 P.2d 925 (1980); State v. Kekaualua, 50 Haw. 130, 433 P.2d 131 (1967).
Halemanu contends that there is insufficient evidence that he was armed with a dangerous instrument.
The Hawaii Penal Code generally defines "dangerous instrument" as follows:
§ 707-700 Definitions of terms in this chapter. In this chapter, unless a different meaning plainly is required:
* * *
* * *
(4) "Dangerous instrument" means any firearm, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury[.] [Emphasis added.]
However, for purposes of the robbery in the first degree statute, the ...
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