State v. Mara
| Decision Date | 13 August 2003 |
| Docket Number | No. 24703.,24703. |
| Citation | 76 P.3d 589,102 Haw. 346 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Bryan MARA, also known as Bryon Mara, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Stuart N. Fujioka, (Nishioka & Fujioka), Honolulu, on the briefs, for Defendant-Appellant.
Bryan K. Sano, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.
Following a jury trial, Defendant-Appellant Bryan Mara, also known as Bryon Mara (Mara), appeals from the November 14, 2001 Judgment, Guilty Conviction and Sentence (November 14, 2001 Judgment), entered by Judge Karen S.S. Ahn, convicting him of Count I, Burglary in the First Degree, Hawaii Revised Statutes (HRS) § 708-810(1)(c) (1993)1; Count II, Robbery in the Second Degree, HRS § 708-841(1)(b) (1993)2; and Count III, Kidnapping, HRS § 707-720(1)(e) (1993)3.
On appeal, Mara asserts that (1) plain error occurred when the court mis-worded its special interrogatory on the question of whether Mara voluntarily released complaining witness, Sandralyn Nguyen (Nguyen); (2) there was insufficient evidence to support a finding that Mara did not release Nguyen voluntarily; (3) the court erred when, by sentencing Mara for Counts I and II to extended terms of imprisonment to be served "consecutively with any other sentence currently being served" by Mara, the November 14, 2001 Judgment imposed a sentence more severe than the sentence imposed by the November 29, 2000 Judgment; and (4) the court erred when it "either [rejected] or [failed] to consider `strong mitigating circumstances' which would reduce [Mara's] mandatory term of imprisonment as set forth in" HRS § 706-606.5 (Supp.2002). We agree with assertion (3) and disagree with assertions (1), (2), and (4).
On September 22, 1998, in Cr. No. 98-2052, Mara was indicted. On September 12, 2000, Mara pleaded guilty to the three counts charged in the September 22, 1998 indictment. Judge Richard K. Perkins set sentencing for November 8, 2000. There was no plea bargain.
On November 6, 2000, Plaintiff-Appellee State of Hawai'i (the State) filed three motions pertaining to Mara's sentence. In its Motion for Extended Term of Imprisonment (Motion for Extended Term Sentencing), the State asked the court, pursuant to HRS §§ 706-661, 706-662(1), and 706-662(4)(a) (Supp.2002), to sentence Mara to "an extended term of life imprisonment as to Count III, and twenty (20) years imprisonment as to Counts I and II." In its Motion for Consecutive Term Sentencing (Motion for Consecutive Sentencing), the State asked the court, pursuant to HRS §§ 706-668.5 and 706-606 (1993), to sentence Mara to "consecutive terms of imprisonment." In its Motion for Sentencing of Repeat Offender (Motion for Repeat Offender Sentencing), the State asked the court, pursuant to HRS § 706-606.5 (Supp.2002), to sentence Mara to "a mandatory minimum [term] of twenty (20) years of imprisonment in Count III, and ten (10) years of imprisonment as to Counts I and II."
Following a hearing on November 29, 2000, at which the court considered a presentence report, the court orally granted the State's Motion for Repeat Offender Sentencing, but denied its Motions for Extended Term Sentencing and Consecutive Sentencing.
On November 29, 2000, the court entered a Judgment, Guilty Conviction and Sentence (November 29, 2000 Judgment) against Mara. In the November 29, 2000 Judgment, the court sentenced Mara to ten years' incarceration on Counts I and II and twenty years' incarceration on Count III. The court set the mandatory minimum term of imprisonment at ten years on Counts I and II and twenty years on Count III. The court ordered all sentences to run "concurrently with each other and with any other sentence [Mara] is now serving." The Mittimus, Warrant of Commitment to Jail, was "to issue immediately."
On March 1, 2001, Mara filed a "Motion for Correction of Sentence Under [Hawai'i Rules of Penal Procedure (HRPP) ] Rule 35, or in the Alternative, Motion to Withdraw Guilty Plea." In a declaration attached to the motion, Mara's attorney asserted, among other things, that Mara believed he was not properly advised about the consequences of his repeat offender status. Following a hearing on May 2, 2001, Judge Perkins, on May 9, 2001, issued a "Finding of Fact, Conclusion of Law and Order Granting Defendant's Motion for Correction of Sentence Under HRPP Rule 35, or in the Alternative, Motion to Withdraw Guilty Pleas Filed March 1, 2001" that stated, in relevant part, as follows:
On August 27, 2001, Mara's trial began in the courtroom of Judge Ahn. At trial, the following evidence was adduced.
On July 6, 1998, after picking up her four-year-old daughter from the babysitter, Nguyen returned home to her two-floor, two-bedroom townhouse located at 98-268 Ualo Street. When Nguyen got home, she placed her daughter on a couch on the first floor because her daughter was sleeping. After she "shut everything" and "locked everything" up downstairs, Nguyen went to the master bedroom on the second floor to use her computer and call the cable company. Nguyen testified that it was her normal practice to secure the townhouse because "it's just me and my daughter."
As Nguyen waited for a cable company representative to answer the telephone, Mara came into the master bedroom. Nguyen stated that she did not know Mara and had not invited Mara into the townhouse. Nguyen mentioned that she was scared because she did not know Mara.
Upon entering the bedroom, Mara grabbed the telephone from Nguyen's hand and asked with whom was she speaking. When Nguyen responded, "Nobody," Mara put the telephone to his ear and then hung it up.
Nguyen asked Mara, Putting his hand beneath his untucked white shirt, Mara told Nguyen "to be quiet because he [had] a gun and he [did not] want to kill [her]."
Wanting to escape from Mara to get her daughter who was downstairs, Nguyen "kept arguing or fighting against [Mara]" by repeating, "I want to see my daughter," and acting like she was going downstairs. Mara responded by "pushing [Nguyen] down to the bed" and throwing the bed's comforter over her head. When Nguyen attempted to get up, Mara grabbed her left arm and pushed her down to the carpeted floor.
At the time, Mara and Nguyen were facing an entertainment center located against the wall of the bedroom. Mara placed Nguyen's head between his legs so that she would not be able to move. When Mara had Nguyen restrained, Mara "started grabbing whatever he [could] from [the bedroom's] entertainment center."
After he took a number of valuables from the bedroom entertainment center, Mara turned his attention to an open closet located a short distance away. When Mara moved away from Nguyen and checked the closet for "any hidden money or jewelries [sic]," Nguyen "ran downstairs to check for [her] daughter."
When Nguyen left the bedroom, Mara followed her. Nguyen reached the front door of the townhouse and tried to open the door, but "for some reason it got stuck." Before Nguyen could make another attempt to open the front door, Mara pulled Nguyen's hair and pushed her to the floor. When Nguyen fell to the floor, Mara went back upstairs to retrieve the items he had taken from Nguyen. Using Mara's absence as an opportunity to escape, Nguyen grabbed her daughter, opened the front door, and ran to a neighbor's house yelling for help. Nguyen saw Mara leave the townhouse a short time later.
When cross-examined about the incident by Mara's attorney, Nguyen testified, in relevant part, as follows:
Mara did not testify in his own defense.
One of the jury instructions submitted by Mara was the following:
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