IN THE SUPREME COURT OF THE STATE OF HAWAII
vs.
EARL ROSSMAN, Defendant-Appellant
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO. 95-245)
MEMORANDUM OPINION
(By: Moon, C.J., Levinson, Nakayama, Ramil, and Acoba, JJ.)
This appeal arises from the October 29, 1999 conviction and sentence of defendant-appellant Earl Rossman of (1) one count of sexual assault in the first degree, (2) two counts of attempted sexual assault in the third degree, and (3) three counts of sexual assault in the third degree.
On appeal, Rossman contends: (1) that the trial court erred when it denied his motions for judgment of acquittal; (2) that there was insufficient evidence to support the jury's verdicts of guilt beyond a reasonable doubt; (3) that the trial court erred when it gave jury instruction 3.12, which states that the prosecution is not required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence, or to produce all documents mentioned or suggested by the evidence, because, when considered with all other instructions, instruction 3.12 would lead a reasonable juror to conclude that lack of evidence is not a sufficient reason to find a reasonable doubt; and (4) that the trial court committed a manifest abuse of discretion in sentencing Rossman to consecutive terms of imprisonment.
We hold that the trial court erred when it denied Rossman's motion for
judgment of acquittal with respect to the charge of first degree sexual
assault. Rossman's remaining contentions are without merit. Accordingly,
we reverse Rossman's conviction of first degree sexual assault and remand
for
resentencing.
I. BACKGROUND
For approximately seven years, Earl Rossman lived in unit 19 of the Noelani Apartments in Waimea, on the island of Hawaii. Rossman was known as a generous distributor of candy amongst neighborhood children and would occasionally join the children in freeze tag and other games about the apartment grounds. Then quite suddenly, in early March 1994, Rossman left Waimea for Cleveland, Ohio. (1)
Also in early March 1994, reports began to emerge that Rossman had sexually assaulted several children in the apartment complex. After a police investigation and grand jury indictment, Rossman was arrested, extradited to Hawaii, and charged with: (1) one count of first degree sexual assault, in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b) (1993); (2) (2) two counts of attempted third degree sexual assault, in violation of HRS § 705-500(1)(b) (1993) (3) and § 707-732(1)(b) (1993); (4) and (3) three counts of third degree sexual assault in violation of HRS § 707-732(1)(b) (1993).
Rossman was tried in Hilo between August 31 and September 2, 1999. Several adults and a number of children testified on behalf of the prosecution. At the close of the prosecution's case, Rossman moved by oral motion for a judgment of acquittal on all charges. The court preserved the motion and postponed argument. (5) Rossman then presented his defense, in which he was the sole witness.
At the close of evidence, Rossman moved for a judgment of acquittal on the basis of the preserved motion. The court heard arguments and subsequently denied the motion, stating in relevant part:
[T]he Court recognizes that I have to consider the evidence in the light most favorable to the State. And I believe that the State has established at least a prima facie case, and the amount and quantity and quality of probative evidence of the value of that evidence is going to be left to the jury.
The defense then moved for a judgment of acquittal on the basis of evidence presented by both the prosecution and the defense. The trial court, noting the standard to be applied to motions for judgments of acquittal differs at the close of all evidence, denied the motion.
The jury returned a verdict
of guilty on all six counts. Rossman was sentenced to twenty years' imprisonment
for the first degree sexual assault conviction and five years for each
of the third degree sexual assault and attempted third degree sexual assault
convictions. The circuit court ordered that two counts of third degree
sexual assault and one count of attempted third degree sexual assault be
served concurrently (6)
and the remaining sentences be served consecutively, totaling thirty-five
years of imprisonment. (7)
Rossman was also ordered to pay
a five hundred dollar criminal injuries compensation fee.
II. STANDARDS
OF REVIEW A. Motions
for judgment of acquittal
When
reviewing a motion for judgment of acquittal, we inquire whether, upon
the evidence viewed in the light most favorable to the prosecution and
in full recognition of the province of the trier of fact, the evidence
is sufficient to support a prima facie case so that a reasonable mind might
fairly conclude guilt beyond a reasonable doubt.
State
v. Jhun, 83 Hawaii 472, 481, 927 P.2d 1355, 1364 (1996) (citing State
v. Pone, 78 Hawaii 262, 265, 892 P.2d 455, 458 (1995); State
v. Alston, 75 Haw. 517, 528, 865 P.2d 157, 164 (1994); State
v. Rocker, 52 Haw. 336, 346, 475 P.2d 684, 690 (1970)).
B. Sufficiency
of evidence for verdict
When an appellate court passes
on the legal sufficiency of evidence to support a conviction, the test
on appeal is whether, considered in the strongest light for the prosecution,
there was substantial evidence to support the conclusion of the trier of
fact. State v. Wallace,
80 Hawaii 382, 391, 910 P.2d 695, 704 (1996) (citing State
v. Okumura, 78 Hawaii 383, 403, 894 P.2d 80, 100, (1995) (citations
omitted)). Substantial evidence is defined as credible evidence that is
of sufficient quality and probative value to enable a reasonably cautious
person to support a conclusion. State
v. Staley, 91 Hawaii 275, 281, 982 P.2d 904, 910 (1999) (citation
omitted); State v. Ildefonso,
72 Haw. 573, 577, 827 P.2d 648, 651 (1992) (quotingState
v. Naeole, 62 Haw. 563, 565, 617 P.2d 820, 823 (1980)).
C. Jury
instructions
"In reviewing jury instructions,
the standard of review is whether, when read and considered as a whole,
the instructions given are prejudicially insufficient, erroneous, inconsistent,
or misleading." State v.
Maelega, 80 Hawaii 172, 176, 907 P.2d 758, 762 (1995) (citations
omitted). Where a trial court has given erroneous instructions, the instructions
are a ground for reversal unless it affirmatively appears from the record
as a whole that the error was not prejudicial. State
v. Gomez, 93 Hawaii 13, 17, 995 P.2d 314, 319 (2000) (citing State
v. Pinero, 70 Haw. 509, 527, 778 P.2d 704, 716 (1989) (citation
omitted)).
D. Sentencing
Due to the broad discretion generally
accorded to trial judges
in imposing sentences, State
v. Vinge, 81 Haw. 309, 316, 916 P.2d 1210, 1217 (1996) (citing Keawe
v. State, 79 Hawaii 281, 284, 901 P.2d 481, 484 (1995) (citation
omitted)), a sentence will not constitute an abuse of discretion unless
it appears the sentencing court clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the substantial detriment
of a party litigant." Id.
(citingKeawe, 79 Hawaii
at 284, 901 P.2d at 484 (citing State
v. Gaylord, 78 Hawaii 127, 144, 890 P.2d 1167, 1184 (1995))).
III. DISCUSSION A. The
trial court erred when it denied Rossman's motion for a judgment of acquittal
with respect to the charge of sexual assault in the first degree, but not
with respect to all other charges.
Rossman contends that the trial
court erred when it denied his motions for a judgment of acquittal. HRPP
Rule 29(a) provides in relevant part:
(a) Motion
Before Submission to Jury. . . . The court on motion of defendant or of
its own motion shall order the entry of a judgment of acquittal of one
or more offenses alleged in the charge after the evidence on either side
is closed if
the evidence is insufficient to sustain a conviction of such offense or
offenses. . . .
(emphasis added).
1. Sexual
assault in the third degree
A prima facie case of sexual
assault in the third degree is established where the prosecution adduces
evidence that the defendant knowingly subjected to sexual contact, or caused
to have sexual contact, a person who is less than fourteen years of age.
HRS § 707-732(1)(b). The prosecution elicited the testimony of two
children. One child, K.U., testified about two separate instances giving
rise to two of the three counts of third degree sexual assault. Both incidents
allegedly occurred while K.U. was engaged in chores about Rossman's apartment
for the purpose of earning money. In the first instance, K.U. testified
that she was watering plants when Rossman approached her and touched her
right breast. On another occasion, while K.U. was mopping the floor of
Rossman's apartment, he approached her and touched her vaginal area over
her clothing. Rossman acknowledged that K.U. occasionally cleaned his apartment
for money, but denied touching her inappropriately.
The prosecution also elicited
the testimony of R.A., who purportedly witnessed Rossman commit the act
giving rise to the third count of third degree sexual assault. R.A. testified
that he witnessed Rossman touch a child, L.K., during a game of "hide and
go seek." He testified that he and L.K. were hiding inside a drainage ditch
when Rossman came and sat beside them. He saw Rossman reach out his hand
and touch L.K. "someplace in the back" that was "probably from her waist
to her knees." The contact occasioned L.K. to proclaim "gross." Rossman
acknowledged that he did, in fact, touch L.K., but claimed that the contact
was innocent. Both K.U. and L.K. were less than fourteen years of age at
the time it was alleged Rossman assaulted them. Viewed in a light most
favorable to the prosecution, the evidence presented by the prosecution
reveals a prima facie case from which a jury could have concluded beyond
a reasonable doubt that Rossman committed three counts of sexual assault
in the third degree.
2. Attempted
sexual assault in the third degree
To establish a prima facie case
of attempted sexual assault in the third degree, the prosecution must adduce
evidence that the defendant intentionally engaged in conduct that, under
the circumstances as he believed them to be, constituted a substantial
step in a course of conduct intended to culminate in sexual assault in
the third degree as defined above. HRS § 705-500(1)(b). The prosecution
elicited the testimony of K.U. that, while doing housework for Rossman,
Rossman grabbed her hand and pulled it towards his genitalia. K.U. testified
that when he did this, her hand involuntarily touched the area of his penis
over his clothing. Another child, T.F., testified that while she was using
a massage machine in Rossman's apartment, Rossman slowly slid his hands
down her back until they were touching her buttocks. Both of these children
were less than fourteen years of age at the time the alleged incidents
occurred. Viewed in a light most favorable to the prosecution, the testimony
of these two children, and the inferences to be drawn therefrom, establish
a prima facie case from which the jury could have concluded beyond a reasonable
doubt that Rossman intentionally engaged 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 sexual assault in the third degree.
3. Sexual
assault in the first degree
A prima facie case of sexual
assault in the first degree is established where the prosecution proves
that Rossman knowingly subjected to sexual penetration another person who
was less than fourteen years of age. HRS § 707-730(1)(b). "Sexual
penetration," which includes fellatio, occurs "upon any penetration, however
slight." HRS § 707-700.
The prosecution elicited the
testimony of three witnesses. The alleged victim's mother testified that
her child, M.C., disappeared from the apartment grounds for a period of
approximately twenty-five to thirty minutes. She further related that when
found by a neighbor, M.C. looked "pale" and "scared." When asked where
she had run off to, M.C. allegedly responded that she had been at Rossman's
apartment. The neighbor testified to seeing M.C. exit Rossman's apartment.
M.C., who was four years old at the time, testified that Rossman approached
her while she was playing outside and inquired whether she wanted some
jelly beans. M.C. replied in the affirmative and Rossman told her to come
to his apartment. When M.C. advised Rossman that her mother would not allow
her to enter his apartment, Rossman told her to wait by his door while
he obtained the candy. He then opened his door and pulled M.C. inside.
She testified that she tried to leave, but that Rossman would not allow
her to exit the apartment. Rossman then allegedly removed both her clothing
and his own clothing, except for his shirt. (8)
During direct examination,
M.C. twice said that Rossman "put his [] peepee by my mouth." The only
suggestion of actual physical contact between Rossman's penis and M.C.'s
mouth came in response to a question by the prosecutor, who asked, "[A]nd
thenyou told us that his
peepee touched your mouth?" Although M.C. responded "yes" to the question,
the record discloses no testimony other than that Rossman placed his penis
"by" her mouth. Aside from M.C.'s response to this one question, the prosecution
presented no evidence that Rossman's penis penetrated M.C.'s mouth.
(9)
A prima facie case for sexual
assault in the first degree requires the prosecution show "penetration."
HRS § 707-730 (1)(b). In the instant case, the prosecution presented
no evidence of penetration. M.C.'s testimony leaves considerable doubt
whether there was even "sexual contact" between Rossman's penis and M.C.'s
mouth. SeeState
v. Arceo, 84 Hawaii 1, 20, 928 P.2d 843, 862 (1996). Viewed in a
light most favorable to the prosecution, the evidence does not support
a prima facie case for sexual assault in the first degree. As such, the
trial court erred by denying Rossman's motion for judgment of acquittal
with respect to the charge of first degree sexual assault.
With respect to all other
charges, the prosecution established a prima facie case as to each count,
and the trial court was correct to submit the matter to the trier of fact.
B. There
was substantial evidence to support the jury's verdict of Rossman's guilt
beyond a reasonable doubt.
Rossman asserts that there
was not substantial evidence to support the jury verdict finding him guilty
on all counts. Rossman's primary contention appears to be that the only
evidence presented by the prosecution was the testimony of witnesses, most
of whom were quite young at the time the alleged crimes occurred, and some
of whose stories appear to have evolved over time.
In analyzing Rossman's argument,
we apply the following standard of review to the facts of this case:
The
test on appeal is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support the conclusion
of the trier of fact. Indeed, even if it could be said in a bench trial
that the conviction is against the weight of the evidence, as long as there
is substantial evidence to support the requisite findings for conviction,
the trial court will be affirmed.
"'Substantial
evidence' as to every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to enable [a
person] of reasonable caution to support a conclusion."
State
v. Eastman, 81 Hawaii 131, 135, 913 P.2d 57, 61 (1996) (citations
omitted).
The duty of the appellate
court on review is not to evaluate witness credibility, but rather to determine
whether there was "substantial evidence" from which the jury could find
the defendant guilty. Id.; Staley,
91 Hawaii at 281, 982 P.2d at 910 (citing State
v. Batson, 73 Haw. 236, 248, 831 P.2d 924, 931 (1992)). Because
we have already held that the trial court erred in failing to dismiss the
charge of first degree sexual assault against Rossman, our analysis is
limited to the remaining charges.
Witness credibility is for
the trier of fact. Staley,
91 Hawaii at 281, 982 P.2d at 910 (citing State
v. Buch, 83 Hawaii 308, 321, 926 P.2d 599, 612 (1996)). Five witnesses
testified on behalf of the prosecution with respect to the charges of third
degree sexual assault and attempted third degree sexual assault. The witnesses
testified from personal experience about specific events. Rossman's own
testimony corroborated portions of their testimony. The jury, as trier
of fact, evidently believed the testimony of prosecution witnesses and
not the testimony of Rossman. It is not for the appellate court to second-guess
its judgment. Id.
Rather, we look for "substantial
evidence" from which the jury could reach a verdict of guilty. As noted
above, the prosecution established a prima facie case as to all elements
of the charges of third degree sexual assault and attempted third degree
sexual assault. When viewed "in the strongest light for the prosecution,"
the evidence presented amounts to "substantial evidence" from which a fact
finder of reasonable caution could find Rossman guilty beyond a reasonable
doubt of the charges against him.
C. The
trial court's jury instruction 3.12, when considered with the other instructions,
was not prejudicially insufficient, erroneous, inconsistent or misleading.
Rossman argues the trial
court erred in reading to the jury, Instruction 3.12 of the Hawaii Pattern
Jury Instructions - Criminal. The instruction to which Rossman objected
read as follows:
The
prosecution is not required to call as witnesses all persons who may have
been present at any of the events disclosed by the evidence, or who may
appear to have some knowledge of these events, or to produce all evidence
or documents mentioned or suggested by the evidence.
Rossman argues this instruction,
when read in concert with instructions to the jury that they could not
convict unless they believed the defendant guilty beyond a reasonable doubt,
would lead a juror to conclude that lack of evidence was not a sufficient
reason to find reasonable doubt. Rossman's argument is without merit.
Jury instruction 3.12 in
no way suggested that lack of evidence was not a sufficient reason to harbor
a reasonable doubt. The trial court specifically instructed the jury that
the prosecution bore the burden of proving "every material element of the
offense charged against the defendant beyond a reasonable doubt." The court's
explanation included the following elaboration on the term "reasonable
doubt":
[Reasonable
doubt] is a doubt in your mind about the defendant's guilt which arises
from the evidence presented or from the lack of evidence presented and
which is based upon reason and common sense.
D. The
sentence imposed by the trial court does not amount to an abuse of discretion.
Rossman objects to the trial
court's imposition of consecutive sentences. Specifically, he argues that,
in light of his advanced age, the lengthy sentence amounts to a life sentence
without the possibility of parole and constitutes an abuse of the trial
court's discretion.
HRS § 706-668.5 (1993)
states, in relevant part, as follows:
Multiple
sentence of imprisonment.
HRS § 706-606 (1993)
provides as follows:
Factors
to be considered in imposing a sentence.
In Gaylord,
this court traced the history of Hawaii's consecutive sentencing statute,
concluding:
[T]he
legislative sentencing philosophy permeating HRS ch. 706 in general and
HRS § 706-606 in particular dictates that consecutive prison sentences,
pursuant to HRS § 706-668.5, may properly be imposed only to achieve
retributive, incapacitative, and deterrent objectives. Thus, at the very
least, (1) the sentencing court must expressly intend that the defendant's
period of incarceration be prolonged by virtue of the consecutive character
of the prison terms (the retributive goal), and (2) the sentence must embody
the forward-looking aim of future crime reduction or prevention (the deterrent
goal).
Id.
at 148-50, 154, 890 P.2d at 1188-90, 1194 (citation and footnotes omitted)).
Prior to imposing sentence,
the trial court read the following statement from the presentence report
to Rossman:
[W]hile
the defendant denies he committed the instant offenses, the circumstances
in the instant offenses describe distinct patterns of a pedophile. The
victims were at a very vulnerable age. The defendant groomed the victims
by using candy, money or games. The offenses occurred over a period of
time which showed the offenses were not accidental.
After sentence was imposed,
the court further stated:
We
also sat through the trial. We know that the evidence brought forward confirms
. . . exactly what [the prosecution] said, separate and distinct times,
separate and distinct victims, separate and distinct deliberate action
if you will. Therefore, the court finds that you're a threat to the community,
particularly young females.
The trial court's statements
reflect a consideration of factors set forth in HRS § 706-606 (1993).
Specifically, the court's statements indicate considerations of (1) the
nature and circumstances of the offense and the history and characteristics
of the defendant; and (2) the need for the sentence to protect the public
from further crimes of the defendant. See
HRS § 706-606.
In light of these statements,
it is apparent the trial court did not clearly exceed the bounds of reason
or disregard rules or principles of law or practice to Rossman's substantial
detriment and, accordingly, that the trial court did not commit a plain
and manifest abuse of discretion in sentencing Rossman to consecutive terms
of imprisonment pursuant to HRS § 706-668.5.
IV. CONCLUSION For the foregoing reasons,
we (1) reverse Rossman's conviction of one count of sexual assault in the
first degree; (2) affirm the circuit court's judgment of conviction against
Rossman of two counts of attempted sexual assault in the third degree and
three counts of sexual assault in the third degree; and (3) remand for
resentencing consistent with this opinion.
Dated: Honolulu, Hawaii,
March 28, 2001.
On the briefs:
Harry Eliason for
Tharrington T. Trusdell,
1. Rossman
testified that the mother of one of his accusers and her husband suspected
him of being an informant or narcotics agent. In early March 1994, the
husband purportedly threatened Rossman's "life and limb" as a result of
several recent police arrests he believed Rossman to be responsible for.
According to Rossman, after receiving this threat, he immediately left
for Cleveland.
2. Sexual assault in the first degree is defined
by HRS § 707-730(1)(b) (1993) as follows: (1) A person commits the offense
of sexual assault in the first degree if:
(1) A person is guilty of an
attempt to commit a crime if the person:
4. Sexual assault in the third degree is defined
by HRS § 707-732(1)(b) (1993) as follows: (1) A person commits the offense
of sexual assault in
the third degree if:
8. M.C. also testified that Rossman touched her vagina
on top of her clothing with his penis and that there was "one part" where
his penis touched her vagina where she did not have any clothing on.
Instruction 3.12, when read
in conjunction with other instructions given to the jury, is a correct
statement of the prosecution's burden. While the defendant's guilt must
be proven beyond a reasonable doubt, the prosecution need not call every
witness or produce every piece of potentially incriminating evidence to
do so. Accordingly, we hold that the jury instructions, as a whole, were
not "prejudicially insufficient, erroneous, inconsistent, or misleading."
(1)
If multiple terms of imprisonment are imposed on a defendant at the same
time . . . the terms may run concurrently or consecutively. Multiple terms
of imprisonment imposed at the same time run concurrently unless the court
orders or the statute mandates that the terms run consecutively. . . .
(2)
The court, in determining whether the terms imposed are to be ordered to
run concurrently or consecutively shall consider the factors set forth
in section 706-606.
The
court, in determining the particular sentence to be imposed, shall consider:
(1)
The nature and circumstances of the offense and the history and characteristics
of the defendant;
(2)
The need for the sentence to be imposed:
(a)
To reflect the seriousness of the offense, to promote respect for law,
and to provide just punishment for the offense;
(b)
To afford adequate deterrence to criminal conduct;
(c)
To protect the public from further crimes of the defendant; and
(d)
To provide the defendant with the needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3)
The kinds of sentences available; and
(4)
The need to avoid unwarranted sentence disparities among defendants with
similar records who have been guilty of similar conduct.
We
find that your denial that you have a problem represents or reflects your
failure to accept responsibility. Therefore increases the risk, in my opinion,
for recidivism. Meaning for you to repeat the offenses. And also I can
assure you, will hinder any possibility of rehabilitation.
defendant-appellant
Deputy Prosecuting Attorney,
for plaintiff-appellee
. . . .
(b) The person knowingly subjects
to sexual penetration another person who is less than fourteen years old
. . . .
. . . .
(b) Intentionally engages in
conduct which, under the circumstances as the person believes them to be,
constitutes a substantial step in a course of conduct intended to culminate
in the person's commission of the crime.
. . . .
(b) The person knowingly subjects
to sexual contact another
person who is less than fourteen years old or
causes such a person to have sexual contact with the
person.
Hawaii
Rules of Penal Procedure (HRPP) Rule 29(b), instructs that "[i]f a motion
for judgment of acquittal is made at the close of the evidence offered
by the prosecution, the court shall not reserve decision thereon." This
appears, however, to be exactly what the trial court did. Accordingly,
we do not apply the rule of State
v. Halemanu, 3 Haw.App. 300, 650 P.2d 587 (1982), which would bar
Rossman from asserting error by the trial court on appeal where he has,
subsequent to the trial court's ruling on his motion, presented his case
to the jury.
The
trial court ordered these three sentences to be served concurrently because
they involved convictions with respect to assaults and attempted assaults
on one child. The remaining three sentences were ordered to be served consecutively
because they involved, respectively, assaults and/or attempted assaults
on three separate children.
The
trial court sentenced Rossman as follows:
Commit you to the Director of
Public
Safety for imprisonment Counts,
One, Two and
Three for a period of five years.
Those
involved the same victim. They
will be served
concurrently. Meaning together.
Count Four, five years.
Count Five, five years.
Count Six, twenty years.
Counts Four, Five, and Six involved
separate
victims, separate times and
circumstances. The
court will order that those
be served consecutive
to Counts One, Two, and Three.
So you have a total of 35 years.
We also order that you pay $500.00
to the Criminal Injuries Compensation Fee.