State v. Miller

• Decision Date: 27 August 2004
• Docket Number: No. 25668.,25668.
• Citation: 105 Haw. 394,98 P.3d 265
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Michael Damien MILLER, Defendant-Appellant.
• Court: Hawaii Court of Appeals

98 P.3d 265

105 Haw. 394

STATE of Hawai'i, Plaintiff-Appellee, v. Michael Damien MILLER, Defendant-Appellant.

No. 25668.

Intermediate Court of Appeals of Hawai'i.

August 27, 2004.

James S. Tabe, Deputy Public Defender, State of Hawai'' i, on the briefs, for defendant-appellant.

Mary Ann J. Holzl-Davis, Deputy Prosecuting Attorney, County of Hawai'i, on the briefs, for plaintiff-appellee.

LIM, Acting C.J., FOLEY and NAKAMURA, JJ.

Opinion of the Court by LIM, Acting C.J.

Michael Damien Miller (Miller) appeals the February 6, 2003 judgment of the family court of the third circuit, the Honorable Terence T. Yoshioka, judge presiding, that convicted him of abuse of a family or household member, a violation of Hawaii Revised Statutes (HRS) § 709-906(1) (Supp.2001).¹ Miller contends there was insufficient evidence adduced at his bench trial to disprove the soi-disant"parental discipline" defense. We disagree, and affirm.

I. Background.

On October 17, 2001, a complaint was filed against Miller, alleging that the day before, he had physically abused the eleven-year-old complaining witness (the CW), who is his nephew. The essential evidence presented at Miller's November 1, 2002 trial follows.

The CW, who lived with his grandparents and Miller, testified that Miller picked him up from school at around three in the afternoon on October 16, 2001. Miller usually picked him up from school on Tuesdays and Wednesdays because those days the CW's grandmother, Miller's mother, was working. The CW remembered he had already experienced a "bad day" at school that day. As they drove home, Miller was tickling him. Although the CW told Miller many times to stop, he would not stop. Whenever the CW grabbed Miller's arm to make him stop, Miller would hit him. Miller also refused to turn down the car radio when the CW told him it was aggravating a headache, instead turning it even louder. The CW got "really mad" at Miller. When they stopped at a gas station, the CW got out and walked away. After the CW had gotten about a hundred yards away, he noticed that Miller and the car were gone, so he turned around and walked back to the gas station to call his grandfather to pick him up.

Then, however, the CW saw Miller driving back. The CW turned around, but Miller walked towards him and started yelling at him. Miller pushed the CW down on the ground. "Oh, he was just swearing at me, yelling at me and telling me to get back in the car and stuff like that." The CW sat there cross-legged and refused to get back in the car. Miller attempted to pick the CW up by the ear, and by the hair, but each time the CW fell back down. Miller then started kicking the CW. "Not really hard, but he was kicking me." Miller hit the CW with his fist, "Five times, maybe. I don't know." "Like on my face or in my ribs or something like that, or maybe in the back." "And he started throwing rocks, but not really at me." The CW could see that Miller was angry. "Yeah, he was mad. He was very mad." The CW was crying and very upset. "Well, some people started coming around. And my uncle started leaving me alone and trying to get the other people to go away. And then some other guy [intervened] and got into a fist fight with my uncle. And then the police came and stopped it."

After the incident, the CW rode in an ambulance to the hospital to be examined. The CW remembered he had injuries to his head. "Yeah, I had a bump over here from when my head hit the ground. Because he kept on trying to pick me up, but then he just dropped me. And then behind my ears, when he tried to pick me up, he grabbed me by my ears, so there would be nail marks all over here." The CW's head was "kind of sore, but not really, really sore." The next day at school, the CW's back and ribs were hurting.

Police officer Iris McGuire (Officer McGuire) recalled that when she arrived on the scene, she saw the CW being walked to the ambulance. He was "crying and real excited." "He was completely red, and it seemed — he complained to me about being in pain. And I observed scratches to the right side of his facial area and ears. And he told me his head hurt. And when I touched the back of his head, he had a lump on his head." Officer McGuire also noticed that Miller's head was bleeding from injuries inflicted by the intervenor. When the CW told her what had happened, Officer McGuire informed Miller that he would be placed under arrest. After Miller was treated at the hospital, Officer McGuire took him into custody. While he was at the hospital, Miller admitted to Officer McGuire that he had grabbed the CW by the ear. Miller explained that the CW refused to get back in the car, and that he was "just trying to get him home." When she was at the scene, Officer McGuire noticed an ICEE drink in Miller's vehicle.

Larry Larison (Larison), a gasoline tank truck driver, was making a delivery to the gas station when he saw a "scuffle" at some distance across the way. Miller was on top of the CW, "trying to pull him or move him or something, grabbing him." Larison saw Miller grabbing the CW, "just by his shirt, I think, or his hair or something. It looked like he was trying to pick him up, get him to come with him." Julie Ann DeGeer (DeGeer) was filling gas at the station. From about fifty feet away, she saw the altercation between Miller and the CW, whom she described as a "chubby little boy." DeGeer recounted, "I seen him hitting his head with closed fist and kicking him." She said Miller hit the CW in the face more than five times. The CW was crouched and crying, pleading with Miller to stop. "He was like all red." The "abuse" lasted so long that DeGeer approached and yelled at Miller to stop. "You know, that was too much beating for one person. I was like, what is going on here." But Miller looked so angry that DeGeer was reluctant to interfere. That is when the intervenor, a "young man about 16, 17 years old[,]" stepped in.

The CW's grandmother, Francine Miller (Mrs. Miller), testified for her son. She noted that she and her husband are "responsible" for the CW. "I'm his legal guardian, permanent custodian.... I think my husband and I are both." Mrs. Miller added that Miller "used to help me when I was working by picking up [the CW] from school." Miller would occasionally "watch" the CW as well. When Miller undertook these tasks, Mrs. Miller expected that he would be responsible for the CW's welfare or well-being. On the day of the incident, Mrs. Miller got a call at work from the hospital. When she arrived at the hospital, she saw the CW and Miller there. As for the CW, "The only thing I noticed was on his face.... He had a small, little cut on his cheek." She took him home from the hospital. The CW did not thereafter require further treatment, and he went to school the next day. On cross-examination, Mrs. Miller remembered that she did feel a lump on the back of the CW's head. "Not as big as a golf ball." Mrs. Miller told the deputy prosecuting attorney (DPA) that she usually disciplines the CW by confining him to his room, but admitted that she sometimes spanks him, "Usually on his butt or his legs. I'll just slap him.... He's a kid that drives me up the wall sometimes." Neither she nor her husband ever punches or kicks the CW. She never hits him in the face.

Miller was the other witness in his defense. Miller, 41, was a plumber, but is disabled with a neck and back injury. He remembered picking the CW up from school that day in his Jeep, as was his wont Tuesdays through Thursdays. Whenever he did so, he was "responsible" for the CW. They were then supposed to go for a ride, but neither Miller nor his Jeep was up to it that day. The CW looked "kind of tired, restless." So Miller attempted to cheer him up by buying him an ICEE. When Miller came out of the gas mart, the CW was gone. Miller spent about five minutes looking for the CW in the vicinity of the store. He then jumped in his Jeep and searched fruitlessly down the road. When Miller returned to the store, he caught a glimpse of the CW. He called out for him as he walked after him, but the CW just looked back at Miller and turned the corner. When Miller caught up with him, he yelled at him to get in the car, but the CW just sat on the ground. Miller yelled at him for a good ten minutes, to no avail. Miller then pulled at the CW's ear, not to injure him but as a come-along. In response, the CW just lay down on the ground. Miller yelled some more, grabbed the CW by the wrists, and tried to drag him, but could not due to his neck and back injury and the CW's 160 pounds. Miller let go of the CW, but continued to yell at him. All the while, the CW was "giggling and thinking it was a game." The CW was not crying.

Then, "this guy came up to me face to face.... And I didn't want him in my face so I pushed him back.... The police were there next thing I know." In the meantime, the CW had been led away by one of the store employees and was standing by, watching. "He thought it was a game, giggling and joking, I mean smiling, kind of." Miller told the police officer the other guy had hit him. The police officer detained the intervenor, but only for a little while. The police officer made Miller ride in an ambulance to the emergency room because he had sustained an injury in the confrontation. "And some stitches had to be put in my eye." Miller was then arrested. Miller later moved out of his parents' house. When his lawyer asked him about his relationship with the CW, Miller replied, "Right now, we don't talk. He doesn't talk to me so I don't talk to him.... I wish we were — I wish we were the same way we were.... Going out, picking maile, doing things."

On cross-examination, Miller acknowledged that he was tickling the CW in the car and did not stop when the CW asked, but denied hitting him when he pushed his hand away. Miller maintained he was tickling the CW in order to make him laugh and "take him out of his bad day." When the DPA alleged that...