State v. Pasion

• Decision Date: 27 October 2022
• Docket Number: CAAP-18-0000905
• Citation: 152 Hawai‘i 24,518 P.3d 1174 (Table)
• Court: Hawaii Court of Appeals
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Concepcion C. PASION, Defendant-Appellant

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STATE OF HAWAI'I, Plaintiff-Appellee, v. CONCEPCION C. PASION, Defendant-Appellant

No. CAAP-18-0000905

Intermediate Court of Appeals of Hawaii

October 27, 2022

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CRIMINAL NO 1FFC-18-0001036)

Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Concepcion Pasion, aka Cyryna Pasion (Pasion), appeals from the Judgment of Conviction and Sentence; Notice of Entry (Judgment) entered by the Family Court of the First Circuit (Family Court) on October 24, 2018.^[1] After a jury trial, Pasion was found guilty of violating an October 2, 2017 Order for Protection (Order for Protection) in violation of Hawaii Revised Statutes (HRS) § 586-11(a) (Supp. 2017) and was sentenced pursuant to HRS § 586-11 (a) (2) (A).^[2] Pasion was sentenced to two years of probation, with thirty days of imprisonment.

Pasion raises three points of error on appeal, contending that the Family Court: (1) plainly erred by presenting the jury with a defective violation of an order for protection elements instruction, in violation of Pasion's due process and fair trial rights; (2) plainly erred in (a) concluding that the requirements of HRS § 586-11(a)(2)(A) constituted sentencing factors, rather than elements of the offense which were required to be proven to the jury beyond a reasonable doubt, in violation of State v. Auld, 136 Hawai'i 244, 361 P.3d 471 (2015); and (b) failing to colloquy Pasion about stipulating to the facts of her prior violation of an order for protection conviction which would make Pasion eligible for enhanced sentencing under HRS § 586-11(a)(2)(A); and (3) erred in (a) granting Plaintiff-Appellee the State of Hawai'i (the State's) Notice of Intent to Use Evidence of Pasion's April 2018 violation of an order for protection offense under Hawaii Rules of Evidence (HRE) Rule 404(b) because the relevance was weak and the prejudice far outweighed the probative value; and (b) concomitantly denying certain evidentiary requests in Defendant's Motion in Limine on the same basis.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, as well as the relevant legal authorities, we resolve Pasion's points of error as follows:

(1) Pasion argues that the Family Court's elements instruction is impermissibly vague and circular because it failed to identify the specific conduct in which Pasion engaged in violation of the Order for Protection.

Erroneous jury instructions are subject to plain error review "because it is the duty of the trial court to properly instruct the jury." State v. DeLeon, 131 Hawai'i 463, 479, 319 P.3d 382, 398 (2014) (quoting State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006)). "As a result, once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction[.]" Id.

The Family Court's instructions to the jury stated, in relevant part:

A person commits the Violation of an Order for Protection if she intentionally or knowingly engages in conduct prohibited by an order for protection issued by a Judge of the Family Court that was then in effect.

There are four material elements of the offense of Violation of an Order for Protection, each of which the prosecution must prove beyond a reasonable doubt.

These four elements are:

1. That, on or about August 27th, 2018, an order for protection issued by the Honorable Kevin T. Morikone of the Family Court in FC-DA number 17-1-2281 pursuant to Chapter 586 of the Hawaii Revised Statutes prohibiting the defendant from engaging in certain conduct was in effect; and

[2.] That, on or about ... August 27th, 2018, in the City and County of Honolulu, State of Hawaii, [Pasion] intentionally or knowingly engaged in conduct that was prohibited by the order for protection; and

3. That [Pasion] knew at that time that such conduct was prohibited by the order for protection; and

4. That [Pasion] was given notice of the order for protection prior to engaging in such conduct by having been present at the hearing in which the order was issued.

Pointing to element 2 of the instruction, Pasion argues that "engaging in certain conduct" does not specify the act or omission that Pasion allegedly committed, such as coming or passing within 100 yards of the protected person's residence or failing to continue to stay away from the residence at [] Nihi Street, which are some of the acts prohibited in the seven-page Order for Protection.

The adequacy of a jury instruction is determined by whether the instruction clearly and correctly specifies what the jury must decide. See generally State v. Bovee, 139 Hawai'i 530, 540-42, 394 P.3d 760, 770-72 (2017) (discussing various Hawai'i cases concerning the trial court's duty with respect to jury instructions). Here, the Family Court's instruction failed to clearly specify the prohibited conduct the jury was being asked to determine. We conclude that the Family Court plainly erred by failing to appropriately specify the particular conduct prohibited by the Order for Protection that Pasion allegedly violated.

However, we further conclude that there is no reasonable possibility that the Family Court's error contributed to Pasion's conviction. The only evidence presented concerning the violation of the Order for Protection was evidence of Pasion's presence at the protected person's home; that evidence was uncontroverted. The protected person testified that she saw Pasion at the home. Honolulu Police Department Officer Tuavao Maiava (Officer Maiava) testified that he saw Pasion in the carport of the protected person's home. And, Pasion testified that she went to the protected person's home, despite knowing that the Order for Protection prohibited her from doing so.^[3]Examining the Family Court's error in light of the entire proceedings, we conclude that the Family Court's error was harmless beyond a reasonable doubt.

Pasion further argues that element 4 of the elements instruction (set forth above) contained a factual finding that the jury was required to make, which constituted a prohibited comment on the evidence.^[4] We conclude that the Family Court's instruction regarding element 4 of the offense did not constitute a comment on the evidence, but instead properly stated an element of the offense that the State was required to prove. Accordingly, we further conclude that Pasion's argument is without merit.

(2) Pasion contends, and the State concedes, that Pasion was entitled to have a bifurcated proceeding in order for the jury to determine the fact identified in HRS § 586-11(a)(2)(A) that must be proved beyond a reasonable doubt before an increased penalty could be levied. The State's concession is well founded. See Auld, 136 Hawai'i at 247, 361 P.3d at 474; see also State v. Wagner, 139 Hawai'i 475, 480, 394 P.3d 705, 710 (2017). Therefore, Pasion's sentence must be vacated, and Pasion is entitled to a new or bifurcated sentencing proceeding in order for a jury to determine whether the additional sentencing requirements were proved beyond a reasonable doubt.^[5]

Pasion further contends that the Family Court erred by failing to conduct a colloquy concerning Pasion's stipulation that Pasion had a prior violation-of-protective-order conviction and that it involved the same Order for Protection. In State v. Murray, 116 Hawai'i 3, 19-20, 169 P.3d 955, 971-72 (2007), the supreme court held:

We now adopt an approach specifically concerning the use of prior convictions to prove an element of a charged offense. As discussed above, the cases have generally adopted two initial steps in applying statutes aimed at recidivist conduct or habitual offenders. First, if a defendant decides to stipulate to the prior convictions, the trial court must accept the stipulation. Second, the trial court must engage defendant in a colloquy to confirm that defendant understands his constitutional rights to a trial by jury and that his stipulation is a knowing and voluntary waiver of his right to have the issue of his prior convictions proven beyond a reasonable doubt.

See also State v. Ui, 142 Hawai'i 287, 290, 418 P.3d 628, 631 (2018) (reiterating the holding in Murray).

We conclude that the requirements that (1) a defendant understands his or her constitutional rights to a trial by jury; and (2) his or her stipulation is a knowing and voluntary waiver of his or her right to have the issue of his or her prior convictions proven beyond a reasonable doubt are both applicable to the use of a prior conviction to enhance the sentencing requirements set forth in HRS § 586-11(a)(2)(A). Here, while the record is somewhat unclear, it appears that Pasion may have stipulated, or been prepared to stipulate, to the prior conviction in order to limit potentially prejudicial evidence related to the prior conviction. Thus, on remand, if Pasion wishes to stipulate to the prior conviction, the Family Court must accept her stipulation. However, the stipulation may be accepted only after the Family Court engages Pasion in an on-the-record colloquy regarding her constitutional rights and ensures that Pasion is making a knowing and voluntary waiver of her right to have the prior conviction proven beyond a reasonable doubt and decided by a jury. See Murray, 116 Hawai'i at 21, 169 P.3d at 973.

(3) Pasion...