State v. Jones

Decision Date19 July 2001
Docket NumberNo. 20543.,20543.
PartiesSTATE of Hawai`I, Petitioner-Appellee, v. Willie JONES, also known as "Willis," Respondent-Appellant.
CourtHawaii Supreme Court

James M. Anderson, Deputy Prosecuting Attorney, for petitioner-appellee, on the writ.

Edwin Lauder Baker, Honolulu, for respondent-appellant.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and Circuit Judge BLONDIN, in Place of ACOBA, J., Recused.

Opinion of the Court by MOON, C.J.

On September 4, 1996, following a circuit court jury trial, respondent-appellant Willie Jones (Defendant) was convicted of: (1) one count of sexual assault in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 707-731(1)(a) (1993)1 (Count I); (2) one count of attempted sexual assault in the second degree, in violation of HRS §§ 705-500 (1993)2 and 707-731(1)(a) (Count II); (3) one count of sexual assault in the fourth degree, in violation of HRS § 707-733(1)(b) (1993)3 (Count III); and (4) two counts of sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (1993) (Counts IV and V). Defendant appealed his convictions. The ICA vacated Defendant's convictions of Counts I through IV, holding that the trial court erred in instructing the jury regarding consent and that jury unanimity as to the verdicts was required. See State v. Jones, No. 205423 ___ Haw. ___, 32 P.3d 1097 (App.1998). The ICA also reversed Defendant's conviction of Count V after the prosecution conceded that there was no evidence in support thereof. See id.

We granted petitioner-appellee State of Hawaii's (the prosecution) application for a writ of certiorari to review the decision of the ICA. We agree with the ICA that the trial court reversibly erred in instructing the jury. However, in light of our decision in State v. Klinge, 92 Hawai`i 577, 994 P.2d 509, reconsideration denied, 92 Hawai`i 577, 994 P.2d 509 (2000), and, because the ICA misapplied this court's holding in State v. Arceo, 84 Hawai`i 1, 928 P.2d 843 (1996), we write to clarify the ICA's analysis.

I. BACKGROUND

The background facts are set forth in detail in the ICA's opinion, see Jones, ___ Haw. at ___ - ___, 32 P.3d at 1098-99, 1998 WL 727344, which we will not repeat here. However, the relevant facts for purposes of our clarification of the ICA's analysis are briefly stated below and presented in more detail in the discussion section, infra.

In July 1994, Complainant, who was then fourteen-years-old, her family, and some of her friends developed a friendship with Defendant, who was then thirty-six-years old. During their friendship, Complainant and Defendant discussed Complainant's interest in modeling and how Defendant could help her begin a career.

Complainant testified that, during the course of an outing with Defendant to the beach, his hotel swimming pool, and his hotel room sometime in July or August 1994, Defendant: (1) touched her leg and her right breast, as well as exposed his genitals, while they were sitting in Defendant's car; (2) pulled Complainant's bathing suit to the side and "tr[ied] to stick his penis" into her vagina while swimming in the hotel pool; and (3) pulled down her sweat shorts and inserted his penis into her vagina three times while she was in the bathroom of Defendant's hotel room. Complainant also testified that, when Defendant made sexual advances toward her, she tried to avoid him or push him away.

Defendant was subsequently indicted on six counts of sexual assault for the following acts: Count I for sexual assault in the second degree (sexual penetration in the hotel room); Count II for attempted sexual assault in the second degree (attempted sexual penetration in the pool); Count III for sexual assault in the fourth degree (exposure of genitals in the car); Count IV for sexual assault in the fourth degree (placing hand on Complainant's breast in the car); Count V for sexual assault in the fourth degree (placing penis on Complainant's vagina in the hotel room); and Count VI for sexual assault in the fourth degree (placing hand on Complainant's vagina in the hotel room).4

During closing arguments, Defendant argued that Complainant had consented to his sexual advances. The prosecution, on the other hand, argued that the evidence showed Complainant's lack of consent and also focused on Complainant's youth, arguing that Defendant was a con artist who took advantage of a young girl.

At the settling of jury instructions, the parties agreed to the following consent instruction, which was given by the court:

In any prosecution, the complaining witness's consent to the conduct alleged or to the result thereof, is a defense if the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
Consent is not a defense if:
(1) It is given by a person who is legally incompetent to authorize the conduct alleged [hereinafter, Ground 1]; or (2) It is given by a person who by reason of youth,5 mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged [hereinafter, Ground 2]; or
(3) It is given by a person whose consent is sought to be prevented by the law defining the offense [hereinafter, Ground 3]; or
(4) It is induced by force, duress, or deception [hereinafter, Ground 4].
The burden is upon the prosecution to prove beyond a reasonable doubt that the complaining witness did not consent to the conduct alleged or the result thereof. If the prosecution fails to meet its burden, then you must find the defendant not guilty.

After deliberations, the jury returned guilty verdicts as to Counts I through V, and Defendant timely appealed.

On appeal before the ICA, Defendant argued, inter alia, that his convictions and sentences should be reversed because: (1) the trial court committed plain error by including Grounds 1 and 3 in the consent instruction because there was no rational basis in the evidence to support such an instruction; (2) the trial court committed plain error by failing to provide the jury with a specific unanimity instruction with respect to Count I, advising the jury that all twelve of its members must agree that the same underlying culpable act had been proved beyond a reasonable doubt; and (3) Defendant was denied the effective assistance of counsel based on trial counsel's failure to ensure that the jury was properly instructed.

The ICA agreed that the trial court erroneously instructed the jury regarding consent with respect to Counts I through IV.6 Specifically, the ICA held that,

"[I]neffective consent" in a criminal case as set forth in Hawai`i Revised Statutes (HRS) § 702-235 (1993) is an attendant circumstance of the offense to which it is attributed and therefore a material element which must be proven beyond a reasonable doubt by the prosecution. We further hold that because there are four potential grounds upon which ineffective consent may be found, the jury must be informed that its decision must be unanimous as to at least one of these grounds before it may render a verdict of guilty on the offense involved. We also conclude that where the jury is instructed that a defendant's criminal liability may be based on the lack of consent of the complaining witness (the complainant) and is also instructed on ineffective consent, the jury must be advised that these bases for criminal liability are mutually exclusive. Thus, the jurors must reach unanimity on one of them as the basis for criminal liability as to the offense concerned. Because the ineffective consent instruction of the first circuit court (the court) failed to inform the jury of the foregoing propositions, the instruction was prejudicially erroneous.

Jones, ___ Haw. at ___, 32 P.3d at 1098. Accordingly, the ICA vacated Defendant's convictions as to Counts I through IV and remanded the case for a new trial on those counts.

On November 17, 1998, we granted the prosecution's timely petition for a writ of certiorari, wherein the prosecution argues that the ICA erred in vacating Defendant's convictions. The prosecution concedes that the ineffective consent instruction was erroneously given because the instruction was inapplicable to the evidence adduced. However, the prosecution maintains that the inclusion of the ineffective consent instruction did not contribute to the verdict because there was sufficient evidence that Complainant did not consent to Defendant's conduct in the first place. The prosecution also contends that the ICA misapplied this court's holding in State v. Arceo, 84 Hawai`i 1, 928 P.2d 843 (1996), and that jury unanimity was not required in this case.

II. STANDARDS OF REVIEW
A. Statutory Interpretation

"`The interpretation of a statute is a question of law reviewable de novo.'" State v. Klinge, 92 Hawai`i 577, 584, 994 P.2d 509, 516

(quoting State v. Kotis, 91 Hawai`i 319, 327, 984 P.2d 78, 86 (1999) (citations omitted)), reconsideration denied,

92 Hawai`i 577,

994 P.2d 509 (2000).

B. Jury Instructions

In the instant case, Defendant's trial counsel agreed to the jury instructions as given and, thus, invited the error of which Defendant now complains. The ICA, stating that, ultimately, the trial court is responsible for properly instructing the jury, concluded that the erroneous instructions prejudiced Defendant and amounted to plain error by the trial court. Jones, ___ Haw. at ___, 32 P.3d at 1104 (citing State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980)). An error is deemed plain error if the substantial rights of the defendant have been affected adversely. See State v. Vanstory, 91 Hawai`i 33, 42, 979 P.2d 1059, 1068 (1999)

.

We acknowledge that, generally, invited errors are not reversible. See State v. Puaoi, 78 Hawai`i 185, 189, 891 P.2d 272, 275 (1995)

. However, on appeal before...

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