OF THE STATE OF HAWAII
STATE OF HAWAII, Plaintiff-Appellee, v.
APPEAL FROM THE FIRST CIRCUIT COURT
MEMORANDUM OPINION
Defendant-Appellant Eric Hoo
(Defendant) appeals the September 3, 1999 judgment of the family court
of the first circuit, which convicted him of one count of violation of
an order for protection, in violation of Hawaii Revised Statutes (HRS)
§ 580-10(d) (1993), and one count of terroristic threatening in the
second degree, in violation of HRS § 707-717(1) (1993), and which
sentenced him on each count to one year of concurrent probation upon terms
and conditions, including sixty days of incarceration. Defendant also appeals
the court's September 24, 1999 order denying his motion for a new trial
and his motion for reconsideration of his sentence. We affirm.
I. Relevant Statutes. At the time of Defendant's arrest,
HRS § 580-10(d) provided, in pertinent part:
Restraining orders; appointment
of master. . . .
. . . .
(d) Whenever it is made to appear
to the court after the filing of any complaint [for annulment, divorce
or separation], that there are reasonable grounds to believe that a party
thereto may inflict physical abuse upon, threaten by words or conduct,
or harass the other party, the court may issue a restraining order to prevent
such physical abuse, threats, or harassment, and shall enjoy in respect
thereof the powers pertaining to a court of equity. Where necessary, the
order may require either or both of the parties involved to leave the marital
residence during the period of the order, and may also restrain the party
to whom it is directed from contacting, threatening, or physically abusing
the children or other relative of the spouse who may be residing with that
spouse at the time of the granting of the restraining order. The order
may also restrain a party's agents, servants, employees, attorneys, or
other persons in active concert or participation with the respective party.
Terroristic threatening in
the second degree. (1) A person commits the offense of terroristic
threatening in the second degree if the person commits terroristic threatening
other than as provided in section 707-716 [terroristic threatening in the
first degree].
(2) Terroristic threatening in
the second degree is a misdemeanor.
HRS § 707-715 (1993) provides,
in relevant part:
Terroristic threatening, defined.
A person commits the offense of terroristic threatening if the person
threatens, by word or conduct, to cause bodily injury to another person
. . . in reckless disregard of the risk of terrorizing, another person[.]
Evidence at the August 26, 1999
jury trial revealed the following.
Dona Diane Tomita (Dona) testified
on direct examination that she married Defendant in 1988. They had one
child, a nine-year-old girl named Tara, who attends the Maryknoll Grade
School. In 1995, they divorced. In connection with the divorce, the family
court issued a restraining order (RO) against Defendant. In January of
1999, Dona renewed the RO for three more years, until sometime in 2002.
A police officer had previously
testified that he served the 1999 RO upon Defendant on February 10, 1999.
The officer explained the specifics of the RO to Defendant and Defendant
indicated that he understood them. Defendant signed a proof of service
of the RO acknowledging his receipt of a copy of the RO and his understanding
of the RO.
Pertinent terms of the RO are
as follows:
1 . .
. Defendant is prohibited from personally contacting [Dona] and any minor
children residing in the household at home, school or babysitters which
includes telephoning, visiting and/or remaining within three (3) blocks
of the place of residence, school and/or employment of [Dona], and particularly
the school of the minor child [Tara] located at (Maryknoll Schools) 1722
Dole Street, Honolulu, Hawaii, 96822.
. . .
.
2 . .
. [Dona] shall report any violations of this Order within five (5) minutes
to the . . . Honolulu Police Department, phone 911[.]
3 . .
. Defendant is prohibited from personally contacting the minor child [Tara]
at home, school or babysitter's which includes telephoning, visiting and/or
remaining within three (3) blocks of the place of residence and/or school
of said minor child.
4 . .
. The terms of this Order shall be explained by the serving officer to
the Defendant. The serving officer shall file a Return of Service and/or
Affidavit confirming that the terms of this order were explained to Defendant
and that Defendant understood the terms and conditions of this Order and
the possible criminal sanctions for violating it.
Dona
further testified that on April 18, 1999, the day of Tara's First Communion,
she and her husband (Dona had remarried after her divorce from Defendant),
along with other family members and friends, attended the 9:30 a.m. liturgy
at the Sacred Heart Church. The director of religious education for the
Maryknoll Schools Sacred Heart Parish had previously testified that Sacred
Heart Church is located within the Maryknoll Grade School campus on the
same city block.
Dona remembered that she sat
with her husband and her in-laws in the second pew from the front of the
church. Dona's seat was the second from the center aisle of the church.
Her husband's seat was the first.
During the sacrament, Dona noticed
Defendant standing in the back of the church, watching. She was shocked
because she knew that the RO prohibited him from being within three blocks
of the school property. Eventually, Defendant came up the center aisle
to receive communion. After he received communion, Defendant said hello
to Tara, who was sitting to the side facing the audience. Defendant then
walked down the side aisle and returned to the back of the church. There
were no words or eye contact exchanged between Dona and Defendant at this
point.
After the ceremony was over,
Dona was concerned about the situation, so she told Tara to come to her.
Tara complied and came into their pew. As Dona and the family were congratulating
her, Defendant approached Tara.
Defendant had a small gift package
and a camera in his hands. Standing at the entrance to the pew, about one
to two feet away from Dona, Defendant spoke to Tara. He told her that the
gift was for her First Communion and that he wanted to take pictures with
her and the priest. As Defendant started to lead Tara out of the pew, Dona
protested that he was not supposed to be there. She pulled Tara behind
her. At this point, Dona and Defendant were face-to-face. Dona's husband
was standing outside their pew by the first pew.
Dona again told Defendant that
he was not supposed to be there. She warned him that she was going to call
the police. Defendant told her to go ahead and call the police. Then he
told her, "Fuck you." Shocked, Dona picked up her cellular phone and started
to dial. Defendant entered the pew, leaned in towards Dona, put his face
in close to hers, and with his left hand in the shape of a handgun ("pointer
finger extended, . . . thumb up in the air, and the rest of [the] fingers
in a fist[]"), put his index finger to her right temple and told her, "Boom,
you haven't heard the last of this." Dona pulled back, shaking. Defendant
left the pew and walked away.
On cross-examination, Dona acknowledged
that when she obtained the extension of the RO in January 1999, she knew
Defendant had lived on Alexander Street, within three blocks of the campus/church
complex, for approximately two years. However, Dona testified under redirect
examination that, at the time of the trial, Tara had been attending the
Maryknoll Grade School for six years, and that the RO had been in continuous
effect since its inception in 1995.
Father Marc Alexander, the pastor
of Sacred Heart Parish, testified that Defendant approached him outside
the church after the April 18, 1999 mass and expressed his desire to congratulate
Tara on her First Communion. Cognizant of the RO, Father Alexander told
Defendant that he had to leave. Defendant responded, something to the effect,
"well, you know, there's a separation of church and state, you know, I'm
here for a service[,]" but Father Alexander insisted that he leave. Thereupon,
Defendant appeared agitated and repeated his comment about the church-state
dichotomy. A short while later, Defendant again approached Father Alexander,
this time inside the church. Father Alexander reminded Defendant that he
had to leave on account of the RO. Father Alexander did not notice what
Defendant did after that, but later he came upon Dona in the church and
saw that she was "crying and upset."
Defendant testified on direct
examination that he lives in an apartment on Alexander Street, across the
street from the campus/church complex. At the time of the trial, he had
lived there for about four years. He owns and runs a business on South
King Street, three blocks away from his residence.
At another point during direct
examination, Defendant admitted that his residence is within the three-block
radius prohibited to him by the RO. He admitted that his living there is
a violation of the RO, but explained: "It is a violation of the restraining
order. And my former wife knows about it, and we agreed upon it, and there's
a provision in here on the -- page 3, the first paragraph, where it says
if plaintiff knows of a violation, she has five minutes to call the police
department. Over the years, she wasn't [sic] called."
Defendant further testified that,
as a "regular parishioner[,]" he always attends the 9:30 a.m. Sunday mass
at Sacred Heart Church. He admitted attending the April 18, 1999 mass.
It was a special mass to him because Tara was having her First Communion,
and he felt a moral obligation as a parent and a parishioner to be there.
Defendant acknowledged that he
understood the RO prohibited him from being within three blocks of Tara's
school. In defense of his presence at the April 18, 1999 mass, he explained:
A. Because
it had no jurisdiction over the church, and that is -- I'm a -- I live
within the geographic lines of Sacred Hearts Parrish [sic], therefore I
have every right to be at church.
Q [Defense
counsel]. Okay. And what do you base this belief upon?
A. This
is based upon the catechisms that we learned in elementary school, the
Catholic Almanac. In the rectory, there's a huge map in there that outlines
the geographic lines of the church. If you live within the geographic lines
and you're a registered parishioner and you donate money to the school,
which we donate tremendous monies to the parrish [sic] and the school,
you are a parishioner. You're entitled to that privilege.
Q. So
you felt that on that day you were entitled to be at church?
A. Absolutely.
Defendant recalled that he arrived
a little late at the mass. Because the mass was crowded, he stood just
inside the church entrance at the back of the church and stayed there all
mass, except when he went up to the front of the church to receive communion.
After mass, he went outside and talked to Father Alexander. He told Father
Alexander that he wanted to give Tara the First Communion gift. Father
Alexander expressed misgivings relating to the RO, but Defendant assured
him: "I said yes, but it pertains to the school, which is Monday through
Friday. This is Sunday mass, I'm there always Sunday. My former wife is
always here Sunday too, so it's no big deal." Defendant then gave the gift
to Tara. He denied the allegations about threatening Dona.
At another point during direct
examination, Defendant again explained his reasons for being at the church
that day:
A. Well,
you know, . . . I'm a practicing Catholic, a very loving, concerned father
who hasn't seen my daughter for five years. It's my moral obligation as
a Catholic to be there. And nowhere in the stipulation of the -- this restraining
order does it mention school -- I mean -- I'm -- may I retract that --
church. It specifically says school, which is primarily a Monday through
Friday event, and it's -- it's -- everyone knows school is Monday through
Friday.
Q [Defense
counsel]. That was your understanding on that day?
A. Absolutely,
right.
Q. What
about when you went up the aisle after mass and tried to give your daughter
the gift, what's your understanding about that despite what the order says
here about personally contacting the minor child?
A. Personally
contacting the minor child at the -- you know, at school. This wasn't the
school, it's a holy sanctuary, and it's -- again, it's my -- as a father
-- you know, it would have been worse if I did not give her something or
if I wasn't there. You know, this would just -- just demoralize that little
girl for the rest of her life.
Q. Well,
wouldn't it demoralize you?
A. Oh,
absolutely.
Q. Why?
A. Because
it's -- it's -- it's a moral obligation, it's a holy sacrament. I take
my -- my faith very seriously.
Q. How
-- how seriously do you take your faith, Mr. Hoo?
A. To
know that marriage is a holy sacrament and it is a moral sin to go through
divorce. You're married once in your life, that's it.
Q. What
about towards the care of your child, Mr. Hoo?
A. The
care of my child, gads, you know - you know, I'd give up everything --
anything just to be there with her. I-- I pay for her entire tuition for
school.
On cross-examination, Defendant
admitted that the terms of the 1999 RO are identical to the terms of the
original 1995 RO. He further admitted that he had read and understood both
with the aid of explanation from the serving police officers. He confirmed
that the terms of the RO "prohibited [him] from coming within three blocks
of home, school or babysitter's's [sic][.]" He admitted again that his
living in the Alexander Street apartment is a violation of the RO. He added
that his business is located within the three-block, stay-away radius and
that it too is a violation of the RO.
Under questioning by the prosecutor,
Defendant testified that he knew Tara was having her First Communion at
the April 18, 1999 mass. He acknowledged that Sacred Heart Church is on
the same lot of land as Maryknoll Grade School, and is thus within three
blocks of Tara's school. He confirmed that he had a gift and a camera with
him. He described taking communion and returning to the back of the church.
He acknowledged walking back up to Tara and giving her the gift, with Dona
standing there.
Defendant admitted that during
his marriage to Dona, he owned all sorts of firearms, and that she was
aware of that fact. He explained that he was a conservation educator for
the State Department of Land and Natural Resources, and in connection with
that taught firearm safety. He also offered that he was a competitive shooter.
On the weekends, he acted as the range director for the Schofield Routing
Gun Club.
The jury found Defendant guilty
on both counts of the amended complaint. On September 3, 1999, Defendant
was sentenced and the court entered the judgment appealed from.
On September 7, 1999, Defendant
filed a motion for a new trial. In his motion, Defendant argued that he
was entitled to a new trial because, among other reasons, certain evidence
had been excluded from the trial. That evidence concerned Dona's previous
acquiescence in his concurrent attendance at the Sacred Heart Church, previous
agreements between them -- the conditions of the RO notwithstanding --
regarding his church attendance and his residence near the school, and
the previous lack of complaint from Dona regarding these apparent violations
of the RO. Defendant reasoned that these circumstances showed
that
there was a discrepancy and some confusion as to how the divorce parties
were treating the restraining order. Defendant should have been permitted
to present this evidence that would have depicted his state of mind on
the day in question and would have shown whether he intentionally and knowingly
violated a court order. Evidence that would make a reasonable person think
that going to Sunday church was not a TRO violation should have been permitted
to have been presented. The testimony was improperly excluded from presentation
during the motions in limine stage and during the trial.
The motion for a new trial also
alleged that the judge should have recused himself because his sister "knows
the complaining witness." This is the first time this allegation arose
in the proceedings. No details of the alleged relationship were ever provided.
The court denied the motion for
a new trial at the September 24, 1999 hearing. With respect to Defendant's
evidentiary complaints, the court noted that it had already ruled on those
issues during motions in limine and upon objections at trial. With respect
to recusal, the court stated:
I don't
even understand what you're talking about. My sister never said anything
to me about this de -- she doesn't even know that I sat on this case. There's
no evidence that there is any relationship between my sister and the defendant.
Defendant also filed a motion
for reconsideration of his sentence on September 7, 1999, seeking a reduction
in the length of his incarceration. The motion for reconsideration was
heard at the same hearing as the motion to dismiss was heard, and was also
denied.
In a motion in limine heard just
before jury selection, Defendant had proffered the evidence of Dona's previous
acquiescence in his concurrent attendance at the church:
[DEFENSE
COUNSEL]: Well, what prosecution [sic] is referring to, I think, is there
are other times when my client has been in church with the alleged -- well,
with [Dona], and the fact that -- you know, and we're gonna -- we will
bring that up, but I don't think that's a bad act, but I think that we
can address that when the time comes.
THE COURT:
What context would that be brought up in?
[DEFENSE
COUNSEL]: Okay. Well, the -- in this particular case we're looking at whether
or not my client thought that he was precluded from going to church if
his wife or daughter is present, okay? My client will testify to the fact
that there were other times, numerous other times, when he was present
in church with them, and prosecution will probably order [sic] that he's
not supposed to go to church with -- you know, whether they're there, period.
And our
point to that would be to show simply that there were other times when
he was there, my client was there, she was there. She never ever complained
about that. And then she chooses this one particular time to voice a complaint,
because it's a special occasion that she suddenly chooses now to complain
about it. And that there are other times when he was there, numerous other
times, 'cause my guy goes to church almost every Sunday, and it wasn't
a big thing, but suddenly it turns into a big thing, and, you know, this
isn't -- this particular restraining order was in place beginning in January,
and there had been a prior restraining order before, but that -- that's
our point is that there are other times when they both were in church and
that it was no big thing, okay, and she had never objected to him being
in church with her before.
THE COURT:
So that goes to what, his state of mind that he didn't know it was a violation?
[DEFENSE
COUNSEL]: Well, it's his state of mind knowing that, number one, the restraining
order doesn't say that I can't go to church with her there, because of
the way that it's -- you know, the plain language of it. And the second
is is [sic] that while I'm there, she's there, she's not complaining, she's
not calling the police within five minutes, as the restraining order says,
and we go -- each goes on their merry way afterward, and that Sunday we
do the same thing, no big thing.
[PROSECUTOR]:
Your Honor, we would object to any mention of prior trips to church with
the complaining witness, it's irrelevant. We should be focusing only on
the date of [sic] question. We don't even know when he went to church,
what days he went to church, and importantly we don't even know if the
complaining witness realized he was there. As far as I'm aware of, she
never -- she never -- she's not aware of any other time when he was in
church with them.
The court excluded the proffered
evidence:
THE COURT:
The problem I have with getting into prior alleged attendances by the defendant
at the church site is that it's not the complaining witness who determines
whether or not an order has been violated. There's so many different circumstances
that can arise where even though she may not call the authorities to arrest
the [D]efendant for violation, that still doesn't make it not a violation,
it's the Court that makes that determination. And I think we're getting
into an area that's gonna cause too much confusion to the jury as to who
is the one responsible to consider it to be a violation. I'm gonna deny
the request.
. . .
.
As far
as the Defendant's request to introduce evidence that the Defendant was
at the church site on prior occasions, I'll deny that request on the grounds
of relevance.
On
the morning of jury selection, Defendant filed a motion to dismiss and
a motion for judgment of acquittal. During the pretrial hearings, however,
Defendant chose to argue only certain issues contained in those motions:
[DEFENSE
COUNSEL]: Again, my client argues that -- again, Judge, my client orders
that -- or argues that the particular incident complained of is a permitted
act under the restraining order that there were, again, several different
times the Defendant and complaining witness would attend the same -- the
same mass, although they were at - in different areas of the church, sit
in different areas of the church.
The wording
of the restraining order said that, again, Defendant can't contact his
ex-wife and the child at the residence, at her work, and at the child's
school, and it doesn't mention at all -- there's no -- the word "church"
is not in any of the pages of the restraining order.
So, again,
we would ask that this particular case be dismissed, that the restraining
order on its face is vague, that it does not include or preclude my client
from attending church, attending to mass, and my client had done that on
many and numerous occasions.
The court, however, was not persuaded:
THE COURT:
Do you stipulate that the order says that he has to stay away at least
three blocks away from the daughter's school? You don't dispute that?
[DEFENSE
COUNSEL]: Well, we don't dispute the fact that that's what the order say,
Judge.
THE COURT:
And where is the school located in relation to the church where the incident
occurred? Within three blocks?
[DEFENSE
COUNSEL]: The school, yes, is within three blocks. However, Judge, the
difference is is [sic] that there is no school on Sunday. Those are different
events. School is not just a location, it's also an event, and school is
Monday through Friday. There's no school on Sundays.
THE COURT:
It's a factual matter whether the Defendant was within three blocks as
prohibited by the order. Leave it for the jury to decide. I'll deny the
motion to dismiss.
On appeal, Defendant raises two
issues with respect to the September 3, 1999 judgment and the September
24, 1999 order denying his motion for a new trial:
1. Testimony
regarding the several times that Mr. Hoo and his ex-wife attended church
together was improperly excluded from being presented to the jury[.]
2. The
Presiding Judge failed to recuse himself when it was pointed out that the
Judge's sister is good friends with Appellant's ex wife.
(Citation
to the record omitted.)
For his first point on appeal,
Defendant argues that the court erroneously excluded from the trial evidence
relevant to the charge of violation of an order for protection under the
first count of the amended complaint.
First, Defendant argues that
the court should have admitted evidence of numerous previous instances
in which he attended services at the Sacred Heart Church, at the same time
as his ex-wife and without complaint from her, all while under the restrictions
of the RO.
Second, Defendant claims that
he and his ex-wife had an "agreement" allowing his attendance at the church,
the restrictions of the RO notwithstanding.
Last, Defendant contends that
evidence "regarding the separate nature of the church where the incident
took place and the school was [wrongfully] excluded."
According to Defendant, the foregoing
evidence
goes
straight to the determination of whether [Defendant's] State of Mind at
the time of the incident was possessive of criminal intent. That matter
is the heart of this case. It is improper to exclude such important evidence
on the simple basis that it is irrelevant.
Throughout
the record, [Defendant] asserts that he believed that it was permissible
for him to attend church even if his ex-wife and minor child were attending.
He argues that his state of mind was such that if he thought that attendance
at church was not permitted under the restraining order that he would not
have been there.
At bottom, Defendant's first
point on appeal is an assertion that the relevant mens rea for the
offense of violation of an order for protection is, that Defendant intentionally
or knowingly violated what he believed were the terms of the RO.
We disagree. Aside from the fact
that such an interpretation of the requisite state of mind would eviscerate
the statute, the interpretation is simply incorrect. The requisite state
of mind is, quite simply, that Defendant intentionally or knowingly violated
the RO; in this case, the express RO restrictions against "personally contacting"
Dona or Tara, and against "remaining within three (3) blocks of . . . the
school of the minor child located at (Maryknoll Schools) 1722 Dole Street,
Honolulu, Hawaii, 96822." Defendant admitted at trial that he intended
to do these things. What Defendant believed was permissible under the RO
was, as the court correctly decided, simply irrelevant.
Seen from another perspective,
Defendant's argument is essentially a mistake-of-law defense; in other
words, that he did not intend or know that his conduct was illegal. But
the Hawaii Penal Code does not recognize a mistake-of-law defense:
The Legislature in dealing with
[HRS] § 702-218 deleted a defense based on mistake of law. The Legislature
said that it was "thereby avoiding a major dilemma with respect to enforcement
of the provisions of this Code. The defenses of ignorance of the law afforded
by [HRS] §§ 702-218 and 220 would have been available, to a degree,
under any given set of circumstances and as such would have constituted
a major encumbrance to enforcement of the substance and spirit of the Code."
See Conference Committee Report No. 2 (1972).
Although the Legislature did
not provide for a defense based on mistake of law, the State Supreme Court
has recognized that, in some instances, there must exist, as a necessary
corollary to the definition of certain offenses, a defense based on this
type of mistake. See State v. Marley, 54 Haw. 450, 476-477, 509 P.2d 1095,
1111-1112 (1973). The court cited [HRS] § 702-220 of the Hawaii Penal
Code as providing a defense to a state trespass prosecution in the case
of honest and reasonable belief ("no matter how incorrect such a belief
might be") that another law (American treaty law) afforded a defense to
the trespass.
Supplemental Commentary on [HRS]
§ 702-218. The judicial gloss on the general rule noticed by this
Supplemental Commentary, State v. Marley, 54 Haw. 450, 476-77, 509
P.2d 1095, 1111-12 (1973), involved a defunct trespass statute containing
the material element "without right." Id. at 454 n.1, 509 P.2d at
1099 n.1. Hence the right under American treaty law championed by the defendants
in Marley was a defense because it was, as the Supplemental Commentary
notes, "a necessary corollary to the definition" of the offense. In this
case, the definition of HRS § 580-10(d) admits of no such corollary
defense. Again, the evidence Defendant proffered was irrelevant.
Nor can Defendant take comfort
in the Marley reference to HRS § 702-220 (1993). Marley,
54 Haw. at 476, 509 P.2d at 1111. HRS § 702-220 provides for an affirmative
defense where a defendant acts
under the belief that the conduct or result was not legally prohibited
when the defendant acts in reasonable reliance upon an official statement
of the law, afterward determined to be invalid or erroneous, contained
in: (1) A statute or other enactment;
(2) A judicial decision, opinion,
or judgment;
(3) An administrative order or
administrative grant of permission; or
(4) An official interpretation
of the public officer or body charged by law with responsibility for the
interpretation, administration, or enforcement of the law defining the
offense.
Clearly, Defendant's assertion
that Dona's previous words and actions led him to believe his conduct was
authorized does not qualify as an affirmative defense under this statute.
Cf. State v. DeCastro, 81 Hawaii 147, 151-53, 913 P.2d
558, 562-64 (App. 1996) (911 telephone operator's authorization to disobey
a police officer's order is not an affirmative defense under HRS §
702-220).
We conclude that the evidence
proffered by Defendant was irrelevant and correctly excluded by the court.
In this connection, we observe that, despite the court's rulings in limine
and upon objections at trial, Defendant still managed to get the excluded
evidence before the jury. When his attorney asked him why he was residing
within three blocks of Tara's school, Defendant replied:
It is
a violation of the restraining order. And my former wife knows about it,
and we agreed upon it, and there's a provision in here on the -- page 3,
the first paragraph, where it says if plaintiff knows of a violation, she
has five minutes to call the police department. Over the years, she wasn't
[sic] called.
In recounting his conversation
with Father Alexander, Defendant gave this explanation for his nonchalance
regarding the restrictions of the RO:
I said
yes, but it [the RO] pertains to the school, which is Monday through Friday.
This is Sunday mass, I'm there always Sunday. My former wife is always
here Sunday too, so it's no big deal.
And
in explaining his reasons for being at the church that day, Defendant said:
A. Well,
you know, . . . I'm a practicing Catholic, a very loving, concerned father
who hasn't seen my daughter for five years. It's my moral obligation as
a Catholic to be there. And nowhere in the stipulation of the -- this restraining
order does it mention school -- I mean -- I'm -- may I retract that --
church. It specifically says school, which is primarily a Monday through
Friday event, and it's -- it's -- everyone knows school is Monday through
Friday.
Q [Defense
counsel]. That was your understanding on that day?
A. Absolutely,
right.
In
addition, Defendant told the jury in his opening statement that
[w]e
will show that there's a difference between the parrish [sic], the church,
and the school. We will show that there's no school on Sundays. We will
show that my client went to mass almost every Sunday at 9:30. We will show
that the complaining witness went to the same mass at 9:30 every Sundays
[sic].
During
his summation, Defendant argued that
[h]e
didn't go to church to terrorize anybody, he went to church because he
felt that he had a fundamental belief to -- to -- to be there and a right
to be there. He looks at the restraining order. There is no word church
in it. It's not a matter of a vacuum or imagining stuff. You look at it
and you read it. There is no church.
And
later,
He
didn't intentionally violate the TRO, he didn't knowingly violate the TRO.
He had done things that apparently he had done in the past. It's not the
only paragraph that he's read about a TRO, and he's -- he did what he normally
does, and this time she happened to raise the issue.
It
is apparent that Defendant was able to get the proffered evidence and argument
thereon before the jury, despite the strictures laid down by the court.
Hence, if error there was, it was harmless beyond a reasonable doubt. State
v. Arceo, 84 Hawaii 1, 12, 928 P.2d 843, 854 (1996).
For his second and final point
on appeal, Defendant argues that the trial judge should have recused himself.
As we previously noted, Defendant raised this issue for the first time
in his motion for a new trial. At that time, the allegation was that the
judge's sister "knows the complaining witness." This allegation was made
only by Defendant's attorney, and only in a memorandum in support of the
motion and in argument at the hearing on the motion. Now, on appeal, the
allegation is that "the Judge's sister was a good friend of [Defendant's]
ex-wife." This allegation is also made only by Defendant's attorney, and
only in the opening brief, without citation to any evidence in the record.
The evolution of the allegation serves to underline the fact that Defendant
did not below and does not now adduce an iota of cognizable evidence or
clarifying detail regarding the allegation.
Thus, on the record and briefs
before us, we cannot and need not review this point on appeal. HRAP Rule
28(b)(3) (1999) ("[T]he appellant shall file an opening brief, containing
. . . the facts material to consideration of the questions and points presented,
with record references supporting each statement of fact or mention of
trial proceedings."); International Brotherhood of Electrical
Workers v. Hawaiian Telephone Co., 68 Haw. 316, 322 n.7, 713 P.2d 943,
950 n.7 (1986) ("Counsel has no right to cast upon the court the burden
of searching through a voluminous record to find the ground of an objection.
It is counsel's duty to cite accurately the portions of the record supporting
counsel's position." (Internal citation omitted.)); cf. State
v. Hoang, 93 Hawaii 333, 336, 3 P.3d 499, 502 (2000) ("Because the
factual basis of [appellant's] alleged point of error is not part of the
record on appeal, this court has no basis upon which to rule on the merits
of his claim." (Citation omitted.)).
DATED: Honolulu, Hawaii, April
17, 2001.
On the briefs:
Edward J.S.F. Smith
Loren J. Thomas,
ERIC HOO, Defendant-Appellant.
(FC-CR. NO. 99-1690)
(By: Burns, C. J., Watanabe and Lim, JJ.)
HRS § 707-717 provides:
At the outset, we observe that
Defendant's points and arguments on appeal do not in any way address or
pertain to his conviction of terroristic threatening in the second degree
under the second count of the amended complaint. Neither do they mention
the court's September 24, 1999 order denying his motion for reconsideration
of his sentence. This being the case, we affirm Defendant's conviction
of and sentence for terroristic threatening in the second degree, and,
in light of our disposition of this appeal, infra, we also affirm
the court's September 24, 1999 order denying Defendant's motion for reconsideration
of sentence. Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(7) (1999)
("[T]he appellant shall file an opening brief, containing . . . [t]he argument,
exhibiting clearly the points of fact and of law being presented, citing
the authorities relied upon."); CSEA v. Doe, 88 Hawaii 159, 174
n.20, 963 P.2d 1135, 1150 n.20 (App. 1998) ("Appellant, however, fails
to present discernible argument with respect to these allegations and this
court, therefore, need not address those matters." (Citations omitted.));
Bank of Hawaii v. Shaw, 83 Hawaii 50, 52, 924 P.2d 544, 546 (1996)
("[Appellant's] appeal asserts numerous grounds but fails to provide discernible
argument or discussion on many of the points. We will disregard a point
of error if the appellant fails to present discernible argument on the
alleged error." (Citation omitted.)).
For the foregoing reasons, we
affirm the family court's September 3, 1999 judgment of conviction and
sentence. We also affirm the family court's September 24, 1999 order denying
Defendant's motion for a new trial and his motion for reconsideration
of his sentence.
for defendant-appellant.
Deputy Prosecuting Attorney,
for plaintiff-appellee.