NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
NO. 27493
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
Defendant-Appellant Jerry Francis Liquie (Liquie) appeals from the judgment of the Circuit Court of the Third Circuit (the circuit court), Judge Elizabeth A. Strance presiding, entered on July 12, 2005, convicting and sentencing Liquie for the offense of Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-710 (1993). We affirm.
During the proceedings below, Liquie stipulated that "on or about the 1[ ]st day of October, 2004 in Kona, County and State of Hawai`i, [he] did stab J.L., eight years of age or younger, which, under circumstances constituted a substantial step in the course of conduct which could culminate in the commission of the crime of Murder in the Second Degree." J.L. was Liquie's five-month-old son. The sole defense raised by Liquie at trial was that he had a physical or mental disease or defect that excluded criminal responsibility, commonly referred to as the insanity defense. HRS § 704-400 (1993). Following a jury-waived trial, the circuit court concluded that Plaintiff-Appellee State of Hawai`i (the State) failed to prove that Liquie committed the offense of Attempted Murder in the Second Degree. The circuit court also concluded that the State did establish, beyond a reasonable doubt, that Liquie committed the lesser included offense of Assault in the Second Degree. As to Liquie's insanity defense, the circuit court concluded that
[Liquie] established by a preponderance of the evidence that at the time of the offense, he suffered from a mental disorder, disease or defect (State vs. Uyesugi, 100 Hawai`i 442, 60 P.3d 843 (2002); however, [Liquie] failed to establish that as the result of said mental disorder, disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Therefore, [Liquie] shall be held criminally responsible for his actions.
On appeal, Liquie raises three arguments: (1) the circuit court erroneously sentenced Liquie to an enhanced sentence under HRS § 706-606.2 because the circuit court did not explicitly find the requisite aggravating circumstance--that Liquie knew or reasonably should have known that J.L. was under the age of eight; (2) the circuit court clearly erred when it admitted and focused on irrelevant evidence pertinent to the defense of extreme mental or emotional disturbance (EMED), which Liquie had not raised in this case; and (3) the circuit court misunderstood the insanity defense and wrongly concluded that Liquie had failed to prove the insanity defense by a preponderance of the evidence.Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the statutes and case law relevant to the arguments raised by Liquie, we disagree with Liquie.
As to Liquie's first argument, we note that this was a bench trial and that evidence presented to the circuit court was overwhelming that Liquie knew that J.L. was under the age of eight. Although the circuit court's failure to expressly find that Liquie knew or reasonably should have known that J.L. was under the age of eight constituted error, it was an error that was harmless beyond a reasonable doubt. State v. Aplaca, 96 Hawai`i 17, 25 P.3d 792 (2001).
As to Liquie's second argument, we disagree with Liquie that evidence that he exhibited "competent executive behavior[,]" "motor skills[,]" "memory skills[,]" and "self control" following Liquie's stabbing of J.L. was irrelevant to Liquie's insanity defense.
As to Liquie's final argument, we note that the trial below was essentially a battle of three experts, two of whom believed that Liquie lacked criminal responsibility when he stabbed J.L., and one who believed otherwise. Inasmuch as there is substantial support for the circuit court's conclusion that Liquie was criminally responsible for his conduct when he stabbed J.L., we will not, on appeal, disturb the circuit court's conclusion.
Affirmed.
DATED: Honolulu, Hawai`i, December 14, 2006.
On the briefs:
Karen T. Nakasone,