State v. Mersberg

• Decision Date: 31 May 2022
• Docket Number: CAAP-18-0000939
• Citation: 151 Hawai‘i 228,510 P.3d 1130 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Aaron K. MERSBERG, Defendant-Appellant
• Court: Hawaii Court of Appeals

151 Hawai‘i 228

510 P.3d 1130 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Aaron K. MERSBERG, Defendant-Appellant

NO. CAAP-18-0000939

Intermediate Court of Appeals of Hawai‘i.

May 31, 2022.

On the briefs:

Jon N. Ikenaga, Deputy Public Defender, for Defendant-Appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.

(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Aaron K. Mersberg (Mersberg ) appeals from the Judgment of Conviction and Sentence; Notice of Entry (Judgment ), entered on November 9, 2018, in the Family Court of the First Circuit (Family Court ).¹ Following a jury trial, Mersberg was convicted of Violation of an Order of Protection, in violation of Hawaii Revised Statutes (HRS ) § 586-11(a), and sentenced pursuant to HRS § 586-11(a)(1)(A).² The charge stemmed from an incident in which Mersberg allegedly went to the residence of his estranged wife and their minor children in violation of an October 9, 2017 Order for Protection (Order for Protection or Order ), and the alleged violation was "in the nature of non-domestic abuse."

On appeal, Mersberg contends that: (1) the Family Court abused its discretion in failing to redact all references to "abuse" in the copy of the Order for Protection that was submitted to the jury; and (2) there was no substantial evidence to support Mersberg's conviction where the Plaintiff-Appellee State of Hawai‘i (State ) failed to disprove his choice-of-evils defense beyond a reasonable doubt.³

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Mersberg's contentions as follows, vacate the Judgment, and remand for a new trial.

(1) Prior to trial, Mersberg filed a motion in limine and a supplemental motion in limine. Relevant to this appeal, Mersberg sought "[r]edaction of [p]rejudicial information from [the] State's [p]roposed [e]xhibits[,]" pursuant to Hawai‘i Rules of Evidence (HRE ) Rules 401 and 403.⁴ Specifically, Mersberg sought redaction of "[a]ny reference to abuse/violence in the Order for Protection," including redaction of the following phrases: (1) "[t]hat the above named Respondent [i.e. , Mersberg] be restrained from committing further acts of abuse or threats of abuse"; and (2) "[a] protective order is necessary to prevent domestic abuse or a recurrence of abuse, and is necessary for a period of 1 year(s), which is a reasonable amount of time."

During the November 7, 2018 hearing on Mersberg's motions, the State argued that the language at issue was "not substantially prejudicial considering the probative value[,]" which the State described as "the violation of the protective order and the defendant's state of mind, the gravity of the order for protection, which would go to the defendant's state of mind on how carefully he paid attention and the seriousness of the order." The State also argued that "[t]he jury should be able to consider the document in its entirety, not piecemeal." Mersberg disagreed. As to the first phrase quoted above, Mersberg argued that the language was "substantially prejudicial" and "clearly implies that there is abuse." The court concluded that the word "further" was more prejudicial than probative, but also took into account the State's completeness argument in ruling: "I will just take out that word 'further' and leave the rest in." As to the second phrase quoted above, the court ruled that the words "or a recurrence of abuse" would be redacted. Mersberg "strong[ly] object[ed,]" arguing "that the language implies that there is ongoing abuse and ... is substantially prejudicial."

On appeal, Mersberg contends that the Family Court abused its discretion in failing to redact the two references to "abuse" that remained in the copy of the Order for Protection that was submitted to the jury. First, Mersberg argues that the references to "abuse" in the Order were not relevant evidence pursuant to HRE Rule 401, and that the only relevant content of the order was the provision that "prohibited [Mersberg] from coming or passing within 100 yards of any residence or place of employment or school of the minor children." Second, Mersberg argues that, pursuant to HRE Rule 403, "[e]ven if the references to 'abuse' were somehow relevant, any minimal and tangential relevance was substantially outweighed by the danger of unfair prejudice."

We find the latter argument dispositive. Under HRE Rule 403, even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." "This balance is predicated upon an assessment of ‘the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will probably rouse the jury to overmastering hostility.’ " State v. Uyesugi, 100 Hawai‘i 442, 463, 60 P.3d 843, 864 (2002) (quoting State v. Bates, 84 Hawai‘i 211, 228, 933 P.2d 48, 65 (1997) ). We review evidentiary decisions based on HRE Rule 403, which require a "judgment call" on the part of the trial court, for an abuse of discretion. State v. Richie, 88 Hawai‘i 19, 37, 960 P.2d 1227, 1245 (1998).

Here, Mersberg was charged with Violation of an Order for Protection, which occurs when "a respondent or person to be restrained [ ] knowingly or intentionally violates the order for protection[.]" HRS § 586-11(a). Additionally, the charge specified that "violation of the Order for Protection was in the nature of non-domestic abuse." At trial, the State argued to the jury that Mersberg violated the provision of the Order that prohibited him from coming or passing within 100 yards of any residence or place of employment or school of the minor children. In opposing Mersberg's motion in limine, the State argued to the court that the provisions of the Order that referenced abuse were relevant to Mersberg's state of mind, but that argument was not made to the jury. Similarly, on appeal, the State contends that the references to abuse were not prejudicial, but does not explain how they were relevant to Mersberg's state of mind or any other issue at trial.

To the extent that the "abuse" language in the Order had any relevance to Mersberg's state of mind and "how carefully he paid attention [to,] and the seriousness of[,] the [O]rder," other non-prejudicial evidence was available to prove the same point. See Walsh v. Chan, 80 Hawai‘i 212, 217, 908 P.2d 1198, 1203 (1995) (explaining that "the availability and quality of other evidence tending to prove the same point" is one factor in determining probative value) (quoting A. Bowman, Hawaii Rules of Evidence Manual § 403-2A at 81 (1990)). For example, the "Certification" provision of the Order stated:

The terms and conditions of this Order were explained by the Court to the parties in open court. The parties acknowledged that they understood the terms and conditions of the Order and the possible criminal sanctions for violating it.

Likewise, the Order stated:

ANY VIOLATION OF THIS PROTECTIVE ORDER IS A MISDEMEANOR, WHICH IS PUNISHABLE BY IMPRISONMENT UP TO ONE YEAR AND/OR A FINE OF UP TO $1,000 PURSUANT TO H.R.S. § 586-11.

Thus, to the extent that the references to abuse had any probative value, the value was low, because the alleged violation did not require proof of the reasons for entry of the Order, and there was other non-prejudicial evidence tending to prove the point that the State sought to prove with the abuse language.

On the other hand, the possible inference that Mersberg had committed domestic abuse had a potential to "rouse the jury to overmastering hostility" toward him. See State v. Lavoie, 145 Hawai‘i 409, 426, 453 P.3d 229, 246 (2019) ("[G]iven the justifiable stigma attached to domestic abusers in the eyes of the public, evidence that Lavoie had committed domestic abuse was highly likely to ‘rouse the jury to overmastering hostility’ towards him." (quoting State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992) )); see also State v. Feliciano, 149 Hawai‘i 365, 377, 489 P.3d 1277, 1289 (2021) ("Here, even if the chair incident evidence had any probative value, its probative value was substantially outweighed by its potential for unfair prejudice. The jury could have inferred that Feliciano had physically abused the [complaining witness] in the past by pushing her out of a chair and acted in the same manner when he struck the [complaining witness] in the face in the charged offense."). And although the State did not emphasize the abuse language to the jury, the State's closing argument did urge the jury to "read through the protective order."

Thus, even assuming that the references to abuse in the Order had some marginal probative value, these references should have been excluded via redaction under HRE Rule 403, because their value was substantially outweighed by the danger of unfair prejudice. Accordingly, we conclude that the Family Court abused its discretion in failing to redact the references to "abuse" in the Order for Protection.

"When such an abuse of discretion is identified, it is grounds to vacate a conviction unless it is harmless beyond a reasonable doubt." State v. Gallagher, 146 Hawai‘i 462, 470, 463 P.3d 1119, 1127 (2020) (citing State v. Kazanas, 138 Hawai‘i 23, 43, 375 P.3d 1261, 1281 (2016) ). "In applying the harmless beyond a reasonable doubt standard[,] the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction." Id. at 481, 463 P.3d at 1138 (quoting State v. Mundon, 121 Hawai‘i 339, 368, 219 P.3d 1126, 1155 (2009) ).

Here, Mersberg did not deny passing within 100 yards of the minor children's residence, but raised a choice-of-evils defense based on his asserted belief that his conduct was necessary to avoid an imminent harm to his son, JM. Mersberg's credibility was...