State v. Valentine, 22566.

Citation93 Haw. 199,998 P.2d 479
Decision Date02 May 2000
Docket NumberNo. 22566.,22566.
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Justin VALENTINE, Defendant-Appellant.
CourtSupreme Court of Hawai'i

Linda C.R. Jameson (Deputy Public Defender), on the briefs, for the defendant-appellant Justin Valentine.

Richard K. Minatoya (Deputy Prosecuting Attorney), on the briefs, for the plaintiff-appellee State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Intermediate Court of Appeals Judge ACOBA, Assigned by Reason of Vacancy.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Justin Valentine appeals from the second circuit court's judgment of conviction and sentence, filed on April 26, 1999, amended on April 29, 1999, and again amended on May 3, 1999, with respect to the offense of attempted prohibited possession of a firearm, pursuant to Hawai`i Revised Statutes (HRS) §§ 705-5001 and 134-7(b).2 On appeal, Valentine contends that: (1) the circuit court erroneously instructed the jury that a reckless state of mind can sustain penal liability for the originally charged offense of prohibited possession of a firearm; (2) the circuit court erroneously instructed the jury regarding the included offense of attempted prohibited possession of a firearm; and (3) the circuit court erroneously gave a jury instruction on constructive and joint possession. We agree, but not for the reasons asserted by Valentine, that the jury instruction regarding the offense of attempted prohibited possession of a firearm was erroneous and that the error was not harmless beyond a reasonable doubt.

Consequently, with regard to the offense of attempted prohibited possession of a firearm, and for the reasons discussed infra in section III.A, we vacate, in part, the circuit court's judgment of conviction and sentence, as amended, and remand the present matter to the circuit court for further proceedings consistent with this opinion. In order to provide guidance on remand, cf. State v. Davia, 87 Hawai`i 249, 252, 953 P.2d 1347, 1350 (1998),

inasmuch as the jury may need to be instructed with respect to the substantive offense that Valentine allegedly attempted to commit, we will address the fact that the circuit court's instruction regarding the charged offense of prohibited possession of a firearm was incomplete, see infra section III.D. Furthermore, inasmuch as Valentine was necessarily acquitted, pursuant to HRS § 701-110(1),3 of the charged offense of prohibited possession of a firearm by virtue of the jury's guilty verdict as to the included offense of attempted prohibited possession of a firearm, he may not be reprosecuted for the charged offense of prohibited possession of a firearm. In light of the foregoing, Valentine's third point of error is moot, see infra section III.E.

I. BACKGROUND
A. Factual Synopsis

Given the limited scope of the present appeal, the facts can be stated briefly. Valentine was charged in a two-count indictment with (1) terroristic threatening in the first degree (Count I) and (2) prohibited possession of a firearm (Count II), see supra note 2. At trial, Maui police officer Leffler testified as follows.

At approximately 2:00 a.m. on March 22, 1997, while restrained in a headlock hold by Officer Leffler, Valentine reached around Officer Leffler's back. Officer Leffler was attempting to place Valentine under arrest for disorderly conduct. Officer Leffler testified that, as he was struggling with Valentine, he felt a "tugging" on his firearm and gun belt and, looking down, observed Valentine's hand on the handle of the firearm. A safety strap — which, when snapped over the firearm, prevented the firearm from being discharged while holstered — secured the firearm in the holster. Officer Leffler placed his hand on top of Valentine's hand, thereby preventing Valentine from unsnapping the safety strap and withdrawing the firearm from the holster. Within "split-seconds," another police officer sprayed the unruly crowd, which had initially gathered to watch Valentine fight another unidentified male, with pepper spray. Affected by the pepper spray, Officer Leffler released Valentine from the headlock. Valentine retreated from Officer Leffler as another person approached the officer and struck him three times. Valentine was subsequently arrested by other police officers.

After a jury trial, Valentine was convicted of Count I and of an included offense of Count II, to wit, attempted prohibited possession of a firearm. Valentine does not challenge his conviction of Count I in the present appeal.

B. The Relevant Jury Instructions
1. The circuit court's jury instruction regarding the offense of prohibited possession of a firearm

The circuit court instructed the jury regarding the offense of prohibited possession of a firearm as follows:

. . . In Count Two of the indictment, the defendant, Justin Valentine, is charged with the offense of Prohibited Possession of a Firearm.
A person commits the offense of Prohibited Possession of a Firearm if having been previously convicted of committing a felony he intentionally, knowingly or recklessly owns, possesses or controls any firearm.
There are three material elements of the offense of prohibited possession of a firearm, each of which the prosecution must prove beyond a reasonable doubt. These three elements are one, that on March 22, 1997, Defendant, Justin Valentine, was convicted of committing a felony, and two, that on or about March 22, 1997, in the County of Maui, State of Hawaii, the Defendant owned, possessed or controlled a firearm, and three, that the Defendant did so intentionally, knowingly or recklessly.

Valentine objected to this instruction on the ground that it should not have included a reckless state of mind.

2. The circuit court's jury instructions regarding possession

The circuit court instructed the jury that:

. . . The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it.
A person who although not in actual possession knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons is then in constructive possession of it.
The law recognizes also that the possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
The element of possession has been proved if you find beyond a reasonable doubt that the Defendant had actual or constructive possession, either solely or jointly with others.
Mere proximity to the object, mere presence or mere association with the person who does control the object is insufficient to support a finding of possession.

Valentine objected to the giving of this instruction on the ground that it was inapplicable to the facts adduced at trial.

The only other instruction the jury received regarding "possession" was that "[t]he word possession means conscious and substantial possession, not a mere involuntary or superficial possession or a passing control fleeting and shadowy in nature."

3. The circuit court's jury instruction regarding the included offense of attempted prohibited possession of a firearm

The prosecution requested that the jury be instructed on the offense of attempted prohibited possession of a firearm as an included offense of the offense charged in Count II, pursuant to HRS § 134-7(b). The circuit court, modifying the prosecution's proposed jury instruction, instructed the jury as follows over Valentine's objection:

. . . If and only if you find the Defendant not guilty of Prohibited Possession of a Firearm, or you are unable to reach a unanimous verdict as to this offense, then you must determine whether the Defendant is guilty or not guilty of the included offense of Attempted Prohibited Possession of a Firearm.
A person commits the offense of Attempted Prohibited Possession of a Firearm if having been previously convicted of committing a felony he attempts to intentionally or knowingly own, possess or control any firearm by intentionally engaging in conduct which under the circumstances as he believed them to be constituted a substantial step in a course of conduct intended to culminate in the commission of the crime of Prohibited Possession of a Firearm.
There are three material elements of this offense, each of which the prosecution must prove beyond a reasonable doubt.
These three elements are, one, that prior to March 22, 1997, the Defendant, Justin Valentine, was convicted of committing a felony, and two, that on or about March 22, 1997, in County of Maui, State of Hawaii the Defendant did attempt to intentionally or knowingly own, possess or control a firearm, and three, that Defendant did so by intentionally engaging in conduct which under the circumstances as he believed them to be constituted a substantial step in a course of conduct intended to culminate in the commission of the crime of Prohibited Possession of a Firearm.
Conduct shall not be considered a substantial step unless it is strongly corroborative of the Defendant's intent to commit Prohibited Possession of a Firearm.

Valentine's objection at trial was that the instruction permitted a non-unanimous verdict, inasmuch as the instruction did not "specify the conduct or the facts which the jury must find in order to convict," and that the evidence adduced at trial potentially established three distinct acts — (1) grabbing onto Officer Leffler's belt, (2) touching the firearm, or (3) holding onto the firearm's handle — each of which could constitute the "substantial step" in an attempt to possess the firearm.

II. STANDARDS OF REVIEW
A. Jury Instructions
"`When jury instructions or the omission thereof are
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