State v. Hernandez

• Decision Date: 23 January 1980
• Docket Number: No. 7136,7136
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Jimmy Anthony HERNANDEZ, Defendant-Appellant, and Warren David Miller, Defendant.
• Court: Hawaii Supreme Court

Page 75

605 P.2d 75

61 Haw. 475

STATE of Hawaii, Plaintiff-Appellee, v. Jimmy Anthony HERNANDEZ, Defendant-Appellant and Warren David Miller, Defendant.

No. 7136.

Supreme Court of Hawai'i.

Jan. 23, 1980.

Syllabus by the Court

1. On appeal, the test to ascertain the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the State, there is substantial evidence to support the conclusion of the 2. It is an elementary principle of law that intent may be proved by circumstantial evidence; that the element of intent can rarely be shown by direct evidence; and that it may be shown by a reasonable inference arising from the circumstances surrounding the act.

trier of fact. It matters not if a conviction under the evidence as so considered might be deemed to be against the weight of the evidence so long as there is substantial evidence tending to support the requisite findings for conviction.

3. Although a common plan may, in certain circumstances, be sufficient to impose liability under HRS § 702-222, it is clear that the legislature, by use of the disjunctive "or," also provided for the imposition of liability where an accomplice simply aided the perpetrator in committing the offense.

4. The power to Sua sponte notice "plain errors or defects affecting substantial rights" clearly resides in this court.

Bruce S. Ames, Kailua, for defendant-appellant.

Faye Koyanagi, Deputy Pros. Atty., Honolulu (Lloyd L. Ching, Deputy Pros. Atty., Honolulu, on brief), for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., KOBAYASHI, Retired Justice, and LUM, Circuit Judge, assigned by reason of vacancies.

PER CURIAM.

This is an appeal by defendant Jimmy Anthony Hernandez (appellant) from a conviction of two counts of sexual abuse in the first degree in violation of HRS § 707-736(1)(a), and kidnapping in violation of HRS § 707-720(1)(d). Appellant contends that his conviction is grounded on insufficient evidence. We affirm in part and reverse in part.

The uncontested facts are as follows:

Shortly after appellant had driven Warren David Miller and the victim, Jill Applebaum, to a remote area at the top of Waialae Iki Ridge, Miller, who was later acquitted by reason of insanity and committed to the Hawaii State Hospital, began an unprovoked and sustained attack against Applebaum. Miller broke a beer bottle over Applebaum's head, dragged her from the car and tore off her clothing; Applebaum bled profusely from the cuts to her head. Miller gagged the victim with her skirt sash and pushed her down a slope to an outcropping of rocks and bushes.

While appellant remained near the car and out of sight, Miller forced Applebaum to her hands and knees and attempted sexual intercourse. Unable to attain an erection, Miller entered the victim's vagina and anus with his fingers.

After further physical abuse of the victim, Miller ordered Applebaum to stay where she was, and began walking back up the slope. Applebaum, finding no other route of escape, ran past Miller in the direction of the car.

When Applebaum reached the car, appellant grabbed and held her, wrapping her with a towel to protect himself from the blood. ¹ After a few seconds, appellant Miller yanked Applebaum off the ground and threw her onto the front of the car; appellant yelled at Miller for bloodying the car. Miller pulled Applebaum off the car and pushed her to the ground. Applebaum was again forced to her hands and knees. Miller began repeatedly shoving a beer bottle into the victim's vagina, occasionally removing the bottle to empty out beer.

pushed [61 Haw. 477] Applebaum aside; Applebaum fell into some scrub. Moments later, Miller reached the victim and resumed his attack.

Appellant eventually yelled, "That's enough, enough, brah, let's go"; he started the car. Miller pushed Applebaum to the edge of the cliff and threw her over; Applebaum fell down a ten-foot drop. Miller climbed down to where Applebaum lay and threw her off a fifteen-foot cliff. As she saw Miller approach for the third time, Applebaum got to her feet, ran to the edge of the overhang and jumped. Although conscious after her fall, she "laid there like dead." The car left.

Appellant was tried without a jury on July 10, 1978, for attempted rape in the first degree, attempted murder, attempted sodomy in the first degree, kidnapping, and four counts of sexual abuse in the first degree. On September 15, 1978, appellant was found guilty of kidnapping and two counts of sexual abuse in the first degree. Appellant was sentenced to imprisonment for a period of not more than five years for each offense, with the sentences to run concurrently.

ISSUE

Whether appellant's conviction for kidnapping and sexual abuse is supported by sufficient evidence.

ANALYSIS

On appeal, the test to ascertain the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the State, there is substantial evidence to support the conclusion of the trier of fact. State v. Hopkins, 60 Haw. 683, 685, 592 P.2d 810, 811 (1979); State v. Smith, 59 Haw. 456, 464, 583 P.2d 337, 343 (1978); State v. Laurie, 56 Haw. 664, 672-73, 548 P.2d 271, 277-78 (1976); State v. Cannon, 56 Haw. 161, 166, 532 P.2d 391, 396 (1975); State v. Cummings, 49 Haw. 522, 532-33, 423 P.2d 438, 445 (1967); State v. Tamanaha, 46 Haw. 245, 251, 377 P.2d 688, 692 (1962). It matters not if a conviction under the evidence as so considered might be deemed to be against the weight of the evidence so long as there is substantial evidence tending to support the requisite findings for conviction. State v. Smith, supra, 59 Haw. at 464, 583 P.2d at 343; State v. Cummings, supra, 49 Haw. at 533, 423 P.2d at 445; State v. Tamanaha, supra, 46 Haw. at 251, 377 P.2d at 692. This standard of review is the same whether the case was tried before a judge or jury. State v. Hopkins, supra, 60 Haw. at 685, 592 P.2d at 812; State v. Smith, supra, 59 Haw. at 464, 583 P.2d at 343; State v. Cummings, supra, 49 Haw. at 533, 423 P.2d at 445; State v. Tamanaha, supra, 46 Haw. at 251, 377 P.2d at 692.

I. KIDNAPPING

HRS § 707-720(1) provides in relevant part that:

A person commits the offense of kidnapping if he intentionally restrains another person with intent to:

(d) Inflict bodily injury upon him or subject him to a sexual offense;

Although appellant acknowledges the record to show that he held and shoved the victim, appellant contends that the evidence is insufficient to show that he restrained or intended to restrain the victim, or that he intended to subject her to a sexual offense. We disagree.

The Commentary on HRS §§ 707-720 to 722 states that:

. . . the duration of restraint necessary for conviction depends upon the intent and attendant circumstances. In this regard, something like a reasonable standard applies. Hence, a short restraint in an area where the victim might suffocate or come to other bodily harm would constitute a substantial interference with liberty under these sections. . . .

The victim in the present case, after Miller's initial assault, was bloody and weakened. She attempted to escape; appellant grabbed her ² and threw her to the ground. Even though of short duration, under such circumstances the actions of appellant constituted a substantial interference with the victim's liberty and, accordingly, a prohibited restraint.

Although there was no direct evidence offered below as to the appellant's intent to restrain the victim or subject the victim to a sexual offense, it is an elementary principle of law that intent may be proved by circumstantial evidence; that the element of intent can rarely be shown by direct evidence; and that it may be shown by a reasonable inference arising from the circumstances surrounding the act. State v. Hopkins, supra, 60 Haw. at 687, 592 P.2d at 812; State v. Yabusaki, 58 Haw. 404, 409, 570 P.2d 844, 847 (1977); State v. Laurie, supra, 56 Haw. at 670, 548 P.2d at 276. The mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all the circumstances. State v. Yabusaki, supra, 58 Haw. at 409, 570 P.2d at 847.

In the present case, it is undisputed that appellant was present when Miller began his attack on Applebaum; it is undisputed that appellant was present when Miller forced her, naked, to the area beyond the slope. The victim, attempting to escape from Miller weakened and bloody, was stopped by appellant and thrown to the ground. Under these circumstances, we find that the trial court had sufficient evidence of appellant's state of mind to return a verdict of guilty on the charge of kidnapping.

II. SEXUAL ABUSE

HRS § 707-736(1) provides in relevant part that:

A person commits the offense of sexual abuse in the first degree if:

(a) He intentionally, by forcible compulsion, has sexual contact with another or causes another to have sexual contact with him;

Appellant at no time made direct sexual contact with the victim. A person is guilty of an offense, however, if it is committed by the conduct of another person for which he is legally accountable; such accountability arises when he is an accomplice to the perpetrator in the commission of the offense. HRS § 702-221. HRS § 702-222 provides that:

A person is an accomplice of another person in the commission of an offense if:

(1) With the intention of promoting or facilitating the commission of the offense, he:

(b) Aids or agrees or attempts to aid the other person in planning or committing it;

Appellant was accordingly found guilty of two counts of sexual abuse, in violation of HRS § 707-736(1), as an accomplice to Miller. The court stated:

As to Count XXII and XXIII, Sexual Abuse First Degree, inserting a beer bottle into the victim's anus and inserting the beer bottle in the victim's vagina, I find the defendant guilty of those two offenses. At this point in time, the defendant had seen the victim being beaten over the...