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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0001078
                                                              20-DEC-2013
                                                              08:41 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

        ANTHONY SANTIAGO, Petitioner/Defendant-Appellant.


                            SCWC-11-0001078

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0001078; CR. NO. 10-1-1319)

                           December 20, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.

                  OPINION OF THE COURT BY ACOBA, J.

          We hold that Petitioner/Defendant-Appellant Anthony

Santiago (Petitioner or Anthony Santiago) may not be convicted of

both Robbery in the Second Degree, Hawai#i Revised Statutes (HRS)

§ 708-841 (Supp. 2013) (Count one), and Assault in the First

Degree, HRS § 707-710 (1993) (Count two), inasmuch as (1) the
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element of infliction of severe bodily injury is common to both

offenses, (2) the jury apparently relied on the same conduct of

Petitioner to satisfy this element for both offenses, (3) the

findings incorporated in the verdicts that Petitioner was

reckless in inflicting severe bodily injury for the second degree

robbery conviction but acted intentionally or knowingly in

engaging in the same conduct for the first degree assault
conviction were inconsistent, (4) consequently, pursuant to HRS §

701-109(1)(c) (1993),1 Petitioner could not be convicted of both

offenses.

            We therefore reverse Petitioner’s conviction of first

degree assault but affirm Petitioner’s conviction of second

degree robbery because (1) the prosecution’s final argument

focused almost entirely on robbery, (2) there was sufficient

evidence to convict Petitioner of second degree robbery, (3)

affirming Petitioner’s conviction of second degree robbery is

consistent with the jury’s verdict convicting Kaulana Akau (Akau)
as an accomplice to the crime of robbery in the second degree,



      1
            HRS § 701-109(1)(c) provides in relevant part as follows:

            § 701-109 Method of prosecution when conduct establishes an
            element of more than one offense.

            (1) When the same conduct of a defendant may establish an
            element of more than one offense, the defendant may be
            prosecuted for each offense of which such conduct is an
            element. The defendant may not, however, be convicted of
            more than one offense if:
            . . .
                  (c) Inconsistent findings of fact are required
                  to establish the commission of the offenses.
(Emphases added.)

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and (4) Petitioner is not prejudiced by this disposition inasmuch

as the penalties for second degree robbery and first degree

assault are the same.

          Additionally, we hold that a specific unanimity

instruction was not required in this case.          Also, we conclude

that Petitioner waived his argument that by instructing the jury

solely on accomplice liability for Kaulana Akau (Akau), the
Circuit Court of the First Circuit (the court)2 commented on the

evidence in violation of Hawai#i Rules of Evidence (HRE) Rule

1102 (1993).3

                                    I.

                                    A.

          On August 3, 2010, Petitioner was driving his Toyota

truck through Waikiki, with Akau as a passenger.           Petitioner

agreed to give a ride to Brad Easterling (Complainant) and

Complainant’s friend, Dustin Hernandez (Hernandez).           Petitioner

did not know either one of them.         Complainant and Hernandez rode
in the bed of the truck.      There are several different versions of

the events that followed.

          According to Complainant, he gave some marijuana to

Petitioner during the ride.      Upon reaching Complainant’s

destination, Complainant and Hernandez exited the truck.

Complainant testified that he then shook hands first with Akau


     2
          The Honorable Karen S. S. Ahn presided.
     3
          See HRE Rule 1102 quoted infra.

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and then with Petitioner, both of whom were still in the truck.

While shaking hands with Petitioner, Petitioner tightly grabbed

Complainant’s hand, Complainant dropped his skateboard, and

someone took Complainant’s backpack.        Complainant testified that

the truck then began moving and that he heard a person other than

the driver, say, “take off.”      Complainant was then dragged for

some distance and suffered serious abrasions or burns on his left
arm, shoulder, hand, knee, and hip.

           Akau testified that he did not see Complainant give

marijuana to Petitioner during the ride.         After reaching

Complainant’s destination, Complainant and Petitioner left the

truck, but Akau did not recall Complainant shaking his hand.

Akau saw Complainant give what looked like a “Ziploc” bag of

marijuana to Petitioner while Complainant was standing outside of

the driver’s side door.     Petitioner grabbed the bag and then

accelerated.   Akau denied seeing a backpack and did not say “take

off.”
           According to Petitioner, Complainant did not give him

any marijuana during the ride.       Complainant did give him a small

amount of marijuana after Complainant exited the truck.

Petitioner shook hands with Complainant, but he “never pulled

him” into the truck.     Akau then asked Complainant if he had any

marijuana for sale.     At this point, Complainant was standing

outside the front window of Petitioner’s truck, on the driver’s

side.   Complainant handed a Ziploc bag containing marijuana to


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Petitioner, which Complainant had removed from a Tupperware-type

container.    Petitioner handed the Ziploc to Akau, who examined it

and then passed it back to Complainant.

            Petitioner testified that Complainant and Akau were

discussing quantity and price regarding marijuana when Petitioner

received a text message from his girlfriend, which he answered.

The next thing Petitioner knew, Complainant and Akau were
struggling and Petitioner was being struck.          Complainant reached

into the truck for what Petitioner thought was Complainant’s

marijuana.    Petitioner did not see a backpack and did not take a

backpack from Complainant.

            After separating Complainant and Akau, Petitioner

“panicked” and drove away.      After driving for some distance,

Petitioner stopped at a stop sign.        At that point, Akau “lunged

over” Petitioner and “pulled fingers off the door.”           Petitioner

had thought Complainant was still where he was when the car “took

off.”
            Petitioner did not recall seeing a backpack.          However,

he had told the police that “if there was a backpack then [Akau]

took it.”    Petitioner related that following the incident he

thought that Akau “was trying to take [Complainant’s marijuana]

without paying for it.”

            Respondent/Plaintiff-Appellee the State of Hawai#i

(Respondent) called the treating physician, Dr. Nip, who

testified that Complainant had suffered “road burns” to his body.


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The burns were impregnated with asphalt, gravel, and dirt.             Dr.

Nip classified Complainant’s injuries as third degree burns, or

the most severe type of burn injury.         Based on the degree of

burn, Dr. Nip indicated in his report to the police that

Complainant had suffered “serious bodily injury.”           During his

testimony, Dr. Nip did not indicate any other basis for finding

serious bodily injury.      In Dr. Nip’s opinion, Complainant
suffered “permanent disfigurement” as a result of the burns.

                                      B.

          On August 16, 2010, Petitioner was charged in a

complaint in Count one with Robbery in the First Degree, HRS §

708-840(1)(a),4 and in Count two with Assault in the First

Degree, HRS § 707-710.5      The two counts against Petitioner read

as follows:
                COUNT I: On or about the 3rd day of August, 2010, in the
          City and County of Honolulu, State of Hawaii, ANTHONY SANTIAGO,
          while in the course of committing theft, did attempt to kill or



     4
          HRS § 708-840(1)(a) provides in relevant part as follows:

          § 708-840   Robbery in the first degree.
          (1) A person commits the offense of robbery in the first
          degree if, in the course of committing theft or
          non-consensual taking of a motor vehicle:
                (a)The person attempts to kill another or
                intentionally or knowingly inflicts or attempts
                to inflict serious bodily injury upon another[.]
          . . . .
     5
          HRS § 707-710 provides in pertinent part:

          §707-710    Assault in the first degree.
          (1) A person commits the offense of assault in the first
          degree if the person intentionally or knowingly causes
          serious bodily injury to another person.
          . . . .


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            intentionally or knowingly inflict or attempt to inflict serious
            bodily injury[6 ] upon Bradley Easterling, thereby committing the
            offense of Robbery in the First Degree, in violation of Section
            708-840(1)(a) of the Hawaii Revised Statutes.
                  COUNT II: On or about the 3rd day of August, 2010, in the
            City and County of Honolulu, State of Hawaii, ANTHONY SANTIAGO did
            intentionally or knowingly cause serious bodily injury to Bradley
            Easterling, thereby committing the offense of Assault in the First
            Degree, in violation of Section 707-710 of the Hawai#i Revised
            Statutes.

(Emphases added.)

            Akau was charged in an indictment solely as an

Accomplice to Robbery in the First Degree, HRS §§ 702-221(2)(c)
(1993),7 702-222(1)(b) (1993),8 and 708-840(1)(a).           On February

15, 2011, the trials were consolidated.

                                     C.

            On September 13, 2011, the court instructed the jury as

to Petitioner, in pertinent part, as follows:
                  [I]n Count 1 . . . , [Petitioner] is charged with the
            offense of robbery in the first degree.
                  . . . .


      6
            “Serious bodily injury” is defined as “bodily injury which creates
a substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” HRS § 707-700 (emphasis added). “Bodily injury” means physical pain,
illness, or any impairment of physical condition. Id.
      7
            HRS § 702-221(2)(c) provides in relevant part as follows:
            Liability for conduct of another.
            . . . .
            (2) A person is legally accountable for the conduct of
            another person when:
                  (c) He is an accomplice of such other person in
                  the commission of the offense.
      8
            HRS § 702-222(1)(b) provides in relevant part as follows:
            Liability for another; complicity. A person is an
            accomplice of another person in the commission of an offense
            if:
            (1) With the intention of promoting or facilitating the
            offense, the person:
                  . . . .
                  (b) Aids or agrees or attempts to aid the other
                  person in planning or committing it [.]

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            There are two material elements of the offense of robbery in
      the first degree, each of which the prosecution must prove beyond
      a reasonable doubt.
            These two elements are:
            1. That, on or about August 3, 2010, in the City and County
      of Honolulu, State of Hawaii, the defendant, Anthony Santiago, was
      in the course of committing theft; and
            2. That, while doing so, [Petitioner] intentionally or
      knowingly inflicted or attempted to inflict serious bodily injury
      upon [Complainant].
            A person commits theft if he obtains or exerts unauthorized
      control over the property of another with intent to deprive the
      person of the property.
            An act shall be deemed in the course of committing theft if
      it occurs in an attempt to commit theft, in the commission of
      theft, or in the flight after the attempt or commission.
            A person attempts to inflict serious bodily injury on
      another if, with the intent to inflict serious bodily injury, he
      intentionally engages in conduct which is a substantial step in a
      course of conduct intended or known by [Petitioner] to create a
      substantial risk of death or which causes serious, permanent
      disfigurement, or protracted loss or impairment of the function of
      any bodily member or organ.
            . . . .
            As to Count 1, . . . if, and only if, you find [Petitioner]
      not guilty of robbery in the first degree, or you are unable to
      reach a unanimous verdict as to this offense, then you must
      consider whether [Petitioner] is guilty or not guilty of the
      included offense of robbery in the second degree.
            . . . .
            There are two material elements of the offense of robbery in
      the second degree, each of which the prosecution must prove beyond
      a reasonable doubt.
            These two elements are:
            1. That, on or about August 3, 2010, in the City and County
      of Honolulu, State of Hawaii, [Petitioner] was in the course of
      committing theft; and
            2. That, while doing so, [Petitioner] recklessly inflicted
      serious bodily injury on [Complainant].
            . . . .
            As to Count 1 . . . if and only if, you find [Petitioner]
      not guilty of robbery in the second degree, or you are unable to
      reach a unanimous verdict as to this offense, then you must
      consider whether Defendant is guilty or not guilty of the included
      offense of Theft in the Fourth Degree.
            . . .
            As to [Petitioner] in Count 2 . . . [he] is charged with the
      offense of assault in the first degree.
            . . . .
             There are two material elements of the offense of assault
      in the first degree, each of which the prosecution must prove
      beyond a reasonable doubt.
            These two elements are:
            1. That, on or about August 3, 2010, in the City and County
      of Honolulu, State of Hawaii, [Petitioner] caused serious bodily
      injury to [Complainant]; and
            2. That [Petitioner] . . . did so intentionally or
      knowingly.
            “Seriously bodily injury” means bodily injury which creates
      a substantial risk of death or which causes serious permanent
      disfigurement, or protracted loss or impairment of the function of

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             any bodily member or organ.
                   “Bodily injury” means physical pain, illness, or any
             impairment of physical condition.
                   . . . .

(Emphases added.)

             For Petitioner, the court also instructed the jury on a

special interrogatory as follows:

                   Okay. If, and only if, you find [Petitioner] guilty of both
             robbery in the first degree or the included offense of robbery in
             the second degree in Count 1, and assault in the first degree or
             the included offense of assault in the second degree or the
             included offense of assault in the third degree in Count 2, then
             you must answer the following questions on a special interrogatory
             that will be provided to you.
                   1. Did the prosecution prove beyond a reasonable doubt that
             [Petitioner] did not commit robbery in the first degree or in the
             included offense of robbery in the second degree in Count 1 and
             assault in the first degree or the included offense of assault in
             the second degree or the included offense of assault in the third
             degree in Count 2 as part of a continuing and uninterrupted course
             of conduct?

                   2. Did the prosecution prove beyond a reasonable doubt that
             [Petitioner] committed robbery in the first degree or the included
             offense of robbery in the second degree in Count 1 and assault in
             the first degree or the included offense off assault in the second
             degree or the included offense of assault in the third degree in
             Count 2 with separate and distinct intents, rather than acting
             with one intention, one general impulse, and one plan to commit
             both offenses?
                   Your answers to these questions must be unanimous.

(Emphases added.)

             For Akau, the court instructed the jury on the charge

of Accomplice to Robbery in the First Degree and its included

offenses.9

      9
            The court’s instructions to the jury for Akau were, in pertinent
part, as follows:

                   In Criminal Number 10-1-1378, [Akau] is charged as an
             accomplice to the offense of robbery in the first degree.
             . . . .
                   There are two material elements of the charge of
             accomplice to robbery in the first degree, each of which the
             prosecution must prove beyond a reasonable doubt.
                                                                 (continued...)

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            The court gave the jury a general unanimity

instruction, but did not give the jury a specific unanimity

instruction.10

                                      D.

                                      1.

            In final argument, the following was asserted by the

prosecution.     The Complainant offered Petitioner marijuana during
the ride and then Petitioner asked the Complainant whether he was

selling any marijuana.       Petitioner “robbed” Complainant of his

backpack.    The Complainant testified that both the driver and the


      9
       (...continued)
                  These two elements are:
            1. That, on or about August 3, 2010, in the City and County
            of Honolulu, State of Hawaii, [Akau] aided or agreed or
            attempted to aid Anthony Santigo in the commission of
            robbery in the first degree; and
            2. That [Akau] did so with intent to promote or facilitate
            the commission of robbery in the first degree by Anthony
            Santiago.
            . . . .
                  . . . [I]f, and only if, you find [Akau] not guilty of
            accomplice to robbery in the first degree, or you are unable
            to reach a unanimous verdict as to this offense, then you
            may consider whether [Akau] is guilty or not guilty of the
            included offense of accomplice to robbery in the second
            degree.
            . . . .
                  There are two material elements to the charge of
            accomplice to robbery in the second degree, each of which
            the prosecution must prove beyond a reasonable doubt.
                  These two elements are:
            1. That, on or about August 3, 2010, in the City and County
            of Honolulu, State of Hawaii, [Akau] aided or agreed or
            attempted to aid Anthony Santiago in the commission of
            robbery in the second degree; and
            2. That [Akau] did so with intent to promote or facilitate
            the commission of robbery in the second degree.
            . . . .
(Emphases added.)
      10
            A specific unanimity instruction “advises the jury that all twelve
of its members must agree that the same underlying criminal act has been
proved beyond a reasonable doubt.” State v. Arceo, 84 Hawai#i 1, 33, 928 P.2d
843, 875 (1996).

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passenger robbed him, both struck him, and both held on to the

backpack so that the Complainant could not retrieve it.

           The events were initiated by Petitioner when Petitioner

pulled the Complainant in toward the truck after the Complainant

shook his hand.    Someone took Complainant’s backpack and then

Petitioner started hitting the Complainant.          Even though

Complainant could not see very much, he was inclined to say that
it was Petitioner elbowing him.       Petitioner sped away and

Petitioner did not stop the truck because Petitioner was

attempting to leave with Complainant’s backpack.

           The elements of robbery were met.         The defendants

inflicted or attempted to inflict serious bodily injury.            The

jury had “seen the injuries of [Complainant]” and heard the

testimony of how [Complainant] suffered.         The jury had also heard

from Dr. Nip on the permanence of the scars and the procedures of

grafting the skin.    The state of mind of “intentional[ly] or

knowingly” was proven because, at minimum, the defendants knew
that dragging the Complainant along the side of the car would

cause serious bodily injury.      This happened in the course of

committing theft or, in other words, when the defendants were

driving away with the backpack.

           The injuries also showed that Petitioner caused assault

in the first degree because, as to Count 2, “of course, [the jury

had] seen the injuries, again causing assault in the first

degree.”


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                                    2.

          In his final argument, the following was argued by

counsel for Akau.    Complainant gave Petitioner marijuana, but at

what point that happened is disputed.        When the Complainant

alighted from the vehicle, he shook Petitioner’s hand and it was

Petitioner, not Akau, who then asked the Complainant whether

Complainant had any marijuana for sale.         Petitioner then reached
over, grabbed the bag of marijuana, stepped on the gas, and “took

off” while the Complainant was hanging onto the truck.

          Petitioner concocted the story about handing the bag

over to Akau.   Akau did not aid or attempt to aid Petitioner in

the commission of the robbery because it was Petitioner who

grabbed the bag and it was Petitioner who was driving the truck

that caused serious bodily injury.

                                    3.

          In his final argument, the following was argued by

counsel for Petitioner.     Petitioner neither stole from nor
assaulted Complainant.     Rather, there were negotiations between

Akau and the Complainant.      Akau was looking at the drugs while

Petitioner was texting a message.        The next thing Petitioner knew

Akau and Complainant were shoving each other and Petitioner was

struck in the head.     Petitioner pushed them back, panicked, and

then accelerated.    Petitioner believed that the Complainant was

on the outside of the truck, but the Complainant grabbed onto the

truck in order to retrieve his marijuana.         Had Complainant been


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dragged for the length and speed that Complainant asserted,

Complainant would have suffered far more serious injuries.

            Complainant did not immediately ask for help or call

the police.    Instead, Complainant walked back to where he was

initially dropped off and then went to a friend’s house to sleep.

Only when Complainant went to the hospital were the police

called.    Petitioner’s counsel did not specifically state that
Akau was the person who committed the robbery and assault.

                                     E.

            On September 14, 2011, the jury found Petitioner guilty

of the included offense of Robbery in the Second Degree on Count

one and of Assault in the First Degree on Count two.              The jury

answered both questions one and two of the special interrogatory

“Yes.”    The jury found Akau guilty of the included offense of

Accomplice to Robbery in the Second Degree.

                                     F.

            The court sentenced Petitioner on both counts to
concurrent ten years of imprisonment.         During sentencing, the

prosecution stated that “both the defendants as the jury had

found were involved in this particular matter . . . the jury

found them both equally as liable, one as a principal, one as an

accomplice.”11

                                     II.

            In his Application Petitioner contends the Intermediate


     11
            Akau was sentenced to probation and did not appeal.

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Court of Appeals (ICA) gravely erred (1) “in deciding that [a]

specific unanimity jury instruction was not necessary” and (2)

“in affirming [the court’s] instructions . . . which required

[the jury] to determine the guilt or innocence of the codefendant

strictly as an accomplice.”        Petitioner requests the convictions

be vacated and the case remanded for a new trial.12

                                    III.
                                      A.

            As to the first question, Petitioner argues that it

appears from the answers to the interrogatory that the jury

concluded Petitioner committed two separate acts resulting in two

separate injuries.      This is because the jury found that the

offenses in Count one and Count two were not part of the “same

continuing course of conduct.”        Petitioner maintains that,

therefore, in light of Arceo,13 a specific unanimity instruction

was necessary to ensure unanimity on the act, intent, and injury

that corresponded to each count.




      12
            Petitioner seeks review of the May 7, 2013 judgment of the ICA
filed pursuant to its April 12, 2013 Summary Disposition Order, affirming the
Judgment of Conviction and Sentence filed by the court on November 29, 2011.
      13
            Petitioner quotes Arceo as follows:

            “When it appears . . . that a conviction may occur as a result of
            different jurors concluding that the defendant committed different
            acts, the general unanimity instruction does not suffice. To
            correct any potential confusion in such a case, the trial judge
            must augment the general instruction [with a specific unanimity
            instruction] to ensure [that] the jury understands its duty to
            unanimous agree to a particular set of facts.”
(Quoting 84 Hawai#i at 32, 928 P.2d at 874 (citing United States v. Echeverry,
719 F.2d 974, 975 (9th Cir. 1983)).)

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            The ICA held that the court “did not plainly err.”14

State v. Santiago, CAAP-11-0001078, 2013 WL 1501030, at *1 (App.

April 12, 2013).     This is because the prosecution “charged two

separate crimes” and “two preconditions for an Arceo unanimity

instruction are proof of two or more separate and distinct

culpable acts and submission to the jury that only one offense

was committed[.]”     Id.
                                     B.

            A specific unanimity instruction such as that in Arceo

was not required.     In Arceo, the prosecution charged the

defendant in an indictment with Sexual Assault in the Third

Degree in Count 1 and Sexual Assault in the First Degree in Count

2.   Arceo, 84 Hawai#i at 5, 928 P.2d at 47.           In Count 1, the

prosecution had aggregated multiple acts of alleged “sexual

contact” from August 16, 1989 to May 4, 1990.            In Count 2, the

prosecution had aggregated multiple acts of alleged “sexual

penetration” from the same time period.          Id.    This court held
that a specific unanimity instruction is required “when separate

and distinct culpable acts are subsumed within a single count . .

. any one of which could support a conviction thereunder” and the


      14
             The ICA reviewed Petitioner’s contentions under the plain error
standard because Petitioner apparently did not request an Arceo instruction at
trial. Under the plain error rule, “[t]his court has the power to take notice
of ‘plain errors or defects affecting substantial rights . . . although they
were not brought to the attention of the court.’” State v. Schnabel, 127
Hawai#i 432, 447 n.28, 279 P.3d 1237, 1252 n.28 (2012) (quoting Hawai#i Rules
of Penal Procedure (HRPP) Rule 52(b)). “This court ‘will apply the plain
error standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial proceedings, to serve
the ends of justice, and to prevent the denial of fundamental rights.’” Id.
(quoting State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)).

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prosecution has not elected the “specific act upon which it is

relying to establish the ‘conduct’ element of the charged

offense.”     Arceo, 84 Hawai#i at 33, 928 P.2d at 875.

            The purpose behind an Arceo instruction is to advise

the jury that, when the prosecution alleges multiple acts in

order to support a single charge, the jury must be unanimous as

to the underlying act for which the defendant is convicted.15
Id.   This is because as a “precept of constitutional . . . law .

. . an accused in a criminal case can only be convicted upon

proof by the prosecution of every material element of the crime

charged beyond a reasonable doubt.”          Id. at 30, 928 P.2d at 872

(internal quotation marks omitted). However, unlike in Arceo, the

prosecution in this case did not aggregate multiple acts under

each count to support the charge of either robbery or assault.

                                      IV.

            In order to convict Petitioner of Robbery in the Second

Degree, the jury must have found in pertinent part that (1) in
the course of theft, (2) Petitioner recklessly inflicted serious

bodily injury on Complainant.

            The jury was not presented with any evidence showing

that either the elbowing, the grabbing, or the taking of the


      15
            However, “a specific unanimity instruction is not required if (1)
the offense is not defined in such a manner as to preclude it from being
proved as a continuous offense and (2) the prosecution alleges, adduces
evidence of, and argues that the defendant's actions constituted a continuous
course of conduct.” State v. Apao, 95 Hawai#i 440, 447, 24 P.3d 32, 39
(2001). In other words, the State may allege multiple acts in a single charge
provided that the multiple acts constitute a continuous course of conduct and
the offense may be proved as a continuous offense. Under such circumstances,
no Arceo instruction is necessary.

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backpack caused a “substantial risk of death” or “serious,

permanent disfigurement” to Complainant.          Thus, the evidence at

trial established that there was only one act that created a

“substantial risk of death” or caused “serious, permanent

disfigurement” and that was dragging the Complainant on the road.

            The statements made to the jury during final argument

also support the conclusion that the infliction of “road burns”
constituted the serious bodily injury element for the robbery

charge.    The prosecution argued that Complainant’s “road burns”

met the element of “infliction of serious bodily injury” for the

robbery charge.     The prosecution stated that an element of the

robbery charge was that Petitioner inflicted “serious bodily

injury.”    In final argument, Akau’s attorney also argued that it

was the road burns that constituted the serious bodily injury for

the robbery charge.      Petitioner’s attorney did not specify to

which count the road burns were attributed.           He argued that the

Complainant grabbed onto the truck in order to retrieve
Complainant’s marijuana, which was not taken by Petitioner.

            Based on the evidence presented at trial and statements

made during final argument, and applying a rational juror

standard,16 the jury must have concluded that the act that

Petitioner committed in which he “recklessly inflicted serious


      16
            This court should “‘with realism and rationality . . . examine the
record . . . taking into account the pleadings, evidence, charge, and other
relevant matter . . . [,]’” so as to determine in which act a rational jury
would have grounded its verdict. State v. Mundon, 129 Hawai#i 1, 15, 292 P.3d
205, 219 (2012) (quoting Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189,
1194 (1970)).

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bodily injury” under the robbery charge was the “dragging [of]

Complainant along the side of the [truck].”

                                    V.

                                    A.

             However, the jury also convicted Petitioner of Assault

in the First Degree.     In order to convict Petitioner of Assault

in the First Degree, the jury must have found that Petitioner
intentionally or knowingly caused serious bodily injury to

Complainant.    HRS § 707-710.

            In final argument, the prosecution did not specify

which act constituted the assault.        The prosecution merely stated

that the jury had “seen the injuries[.]”         The prosecution did not

indicate what those injuries were.        However, the only injury that

constituted “serious bodily injury” that was adduced in the

evidence was the “road burns.”       It would seem then that the jury

had to have concluded that the act Petitioner committed that

“intentionally or knowingly caus[ed] serious bodily injury” to
Complainant under the Assault in the First Degree charge was also

the act of “dragging [] Complainant along the side of the

[truck].”

            But by answering “Yes” to the second special

interrogatory question, the jury also found that Petitioner

committed robbery in the second degree and assault in the first

degree with “separate and distinct intents, rather than acting

with one intention, one general impulse, and one plan to commit


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both offenses[.]”    Therefore, the jury did not find that the

offenses of robbery in the second degree and assault in the first

degree merged.

          If, as the jury found, each of the offenses of robbery

in the second degree and assault in the first degree were

committed separately, each respective verdict must have rested on

an act of inflicting “serious bodily injury.”          Consequently, the
jury apparently utilized the act of dragging Complainant with the

truck as the basis for its verdicts on both robbery in the second

degree and assault in the first degree.

          However, conviction of both offenses based on the same

conduct is precluded by HRS § 701-109(1)(c). Under HRS § 701-

109(1)(c), when the same conduct of the defendant establishes an

element of more than one offense, the defendant may not be

convicted of both offenses if “[i]nconsistent findings of fact

are required to establish the commission of the offenses.”

                                    B.
          The jury’s verdicts in the instant case reflected the

inconsistent factual determinations that the defendant committed

the same act of dragging Complainant with his vehicle with both a

reckless (robbery second) and intentional or knowing (assault

first) state of mind.     The jury’s verdict of guilty as to robbery

in the second degree required a finding that the defendant

recklessly inflicted serious bodily injury by dragging

Complainant with the truck.      However, the jury’s verdict of


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guilty as to assault in the first degree necessitated a finding

that the defendant knowingly or intentionally inflicted serious

bodily injury by dragging complainant with the truck.

            Because the jury’s verdict found that Petitioner

inflicted severe bodily injury both (1) intentionally or

knowingly and (2) recklessly, it contained “inconsistent findings

of fact.”    Briones v. State, 71 Haw. 442, 457, 848 P.2d 966, 974

(1993) (holding that a verdict violated HRS § 701-109(1)(c)

because it found that the defendant acted with “two mutually

exclusive states of mind”); see also People v. Hoffer, 478 N.E.2d

335, 340 (Ill. 1985) (holding that the jury’s verdict was

inconsistent because “the jury concluded that the defendant

killed another[] intentionally or knowingly . . . while

simultaneously finding that defendant recklessly but

unintentionally caused the death of the victim”); Griffin v.

Parker, 593 A.2d 124, 127 (Conn. 1991) (“[T]he transgression that

caused the victim's injuries was either intentional or reckless;

it could not, at one and the same time, be both.”).            Therefore,

the jury inconsistently found that Petitioner intentionally or

knowingly and recklessly inflicted serious bodily injury on

Complainant.    Hence, under HRS § 701-109(1)(c), Petitioner could

not be convicted of both robbery in the second degree and assault

in the first degree.      See Briones, 71 Haw. at 457, 848 P.2d at

974.17


     17
            Arguably, this conclusion may also be reached on other grounds.
                                                                (continued...)

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                                     VI.

            Inasmuch as Petitioner cannot be convicted of both

offenses, we are faced with the question of which count may not

survive.    When faced with a situation in which a defendant was

wrongly convicted of two offenses, this court has considered

principles of equity and judicial economy in dismissing one of

the counts.    In State v. Jumila, 87 Hawai#i 1, 950 P.2d 1201

(1998) overruled on other grounds by State v. Brantley, 99

      17
        (...continued)
It has been explained that “‘robbery appears to consist of both theft and
threatened or actual assault.’” State v. Ah Choy, 70 Haw. 618, 621, 780 P.2d
1097, 1100 (1989) (quoting Commentary to HRS §§ 708-840 and 708-841). The
assault must occur “in the course of committing theft.” See HRS § 708-840.
The legislature, “in recognition of the ‘increased risk of harm’ present in a
robbery ‘[beyond what] the sum of its simple components would seem to
indicate’ has sought to punish robbery ‘more severely than the sum of its
simple components.’” Ah Choy, 70 Haw. at 621, 780 P.2d at 1100 (quoting
Commentary to HRS §§ 708-840 and 708-841). However, the legislature “did not
intend to create an anomaly or an absurd result.” Id. at 622, 780 P.2d at
1000. Thus, in the context of a prosecution for robbery and attempted murder,
this court has held that “the legislature never intended that a defendant be
convicted of both robbery in the first degree and its component offense of
attempted murder in the absence of evidence that the defendant committed both
offenses separately in time.” Id.
             In the instant case, in Count one, Petitioner was charged with
robbery in the first degree and the court instructed the jury as to the lesser
included offenses of robbery in the second degree and theft in the fourth
degree. In Count two, Petitioner was charged with assault in the first degree
and the lesser included offenses of assault in the second degree and assault
in the third degree. Under the facts of the case, there was a possibility
that the jury would find that the Petitioner committed both theft and assault,
but that the assault did not occur “in the course of committing theft.” Had
the jury made such a determination, the proper result would have been to find
Petitioner guilty of theft in the fourth degree in Count one, and assault in
Count two.
             However, “the legislature did not intend to create an anomaly or
an absurd result,” and did not intend for a defendant to be convicted of both
robbery and its component offense of assault in the absence of evidence that
the defendant committed both offenses separately in time.” Id. Thus, under
the circumstances of this case, if the jury found Petitioner guilty of robbery
in the first degree or robbery in the second degree, it should not have
reached Count two, which contained “the component offense of assault.” See
id.; cf. discussion supra. Hence, arguably, “the [court’s] instruction should
have been framed so that once the jury determined that [Petitioner] was guilty
of [robbery in the first degree or robbery in the second degree], [the jury]
need not go any further with respect to the assault count.” Id. at 623, 708
P.2d at 1101. Thus, the case may also be resolved on the grounds that the
court’s erroneous instructions allowed the jury to improperly convict
Petitioner of both robbery and assault. See discussion supra.

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Hawai#i 463, 56 P.3d 1252 (2002), this court determined that the

murder conviction was a lesser included offense of the firearm

conviction and so the defendant should not have been convicted on

both counts.18

            Although Jumila recognized that the usual practice was

to reverse the conviction and sentence for the lesser included

offense, it was decided that doing so would be “manifestly unfair

to the prosecution and to the public,” because murder was “an

offense of a higher class and grade.”         Id.   This court concluded

that the appropriate disposition was to reverse the jury’s

conviction on the firearms charge.         Id. (citing State v. Luiafi,

1 Haw. App. 625, 644, 623 P.2d 1271, 1283 (1981)).            Here,

however, the convictions are of equal grade.           Robbery in the

Second Degree and Assault in the First Degree are both Class B

felonies, with a maximum term of ten years each.            HRS §§ 708-

841(2), 707-710(2), 706-660(1).        As noted, the court sentenced

Petitioner to ten years of imprisonment on both counts to run

concurrently.

            If it is apparent which count of the verdict should be

dismissed, the error may be cured by reversing only that count.

In Liuafi, the ICA held that a defendant’s conviction of both



      18
            In Jumila, this court held that murder in the second degree was an
included offense of the charge of carrying or use of a firearm in the
commission of a separate felony, and therefore the defendant could not be
convicted of both. 87 Hawai#i at 3, 950 P.2d at 1203. This aspect of Jumila
was overruled in Brantley, which held that the legislature did not intend
murder in the second degree to be a lesser included offense of carrying or use
of a firearm in the commission of a separate felony. 99 Hawai#i at 469, 56
P.3d at 1258.

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attempted murder and the failure to render assistance to the

victim of an accident rested on inconsistent findings of fact19

and was therefore precluded by HRS § 701-109(1)(c).            Liuafi, 1

Haw. App. at 643, 623 P.2d at 1282.         However, it was not

necessary to reverse every count of the inconsistent verdict

“unless prejudice [was] shown.”        Id. at 643, 623 P.2d at 1283.

The ICA concluded that because of “the specificity of the

instructions on the attempted murder charge, the strength of the

State’s case on that charge, and the lack of definitional

certainty on the [failure to render assistance] charge . . . the

proper disposition [was] to vacate the judgment of conviction

[only] as to [the failure to render assistance charge.]”             Id.

            In the instant case, Respondent’s final argument was

premised almost entirely on the theory that Petitioner was guilty

of the robbery charge.      On the other hand, the prosecution

mentioned the assault charge only in passing.

            Akau’s counsel also tied the serious bodily injury to

the robbery, but argued that Akau did not aid in the commission

of robbery because Akau was not driving the truck which caused

the road burns.     Upholding the robbery conviction of Petitioner

would be consistent with the verdict finding Akau guilty of being


      19
            The ICA in Luiafi held that the jury’s verdict was inconsistent
because a defendant could only be guilty of the failure to render assistance
if he or she was “involved in an accident.” 1 Haw. App. at 642, 623 P.2d at
1282. However, by finding the defendant guilty of attempted murder, the jury
found that he had “intentionally attempt[ed] to murder a person by using [his]
vehicle as a weapon.” Id. at 643, 623 P.2d at 1282. According to the ICA,
this incident did not fall within the definition of an “accident,” and
therefore no accident occurred. Id. Thus, the ICA held that the verdict was
inconsistent. Id.

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an accomplice to robbery, in this consolidated case.             Neither the

public nor the prosecution would be treated unfairly by dismissal

of the assault charge.      Petitioner’s sentences were to run

concurrently, in effect one ten year sentence was imposed for

both convictions.

            Because there was sufficient evidence to convict

Petitioner as to robbery in the second degree and because the

penalties for the robbery and assault convictions are the same,

it cannot be said that Petitioner would be prejudiced by

dismissal of the assault charge.          See Liuafi, 1 Haw. App. at 643,

623 P.2d at 1283.     Thus, the error can be remedied simply by

reversing the conviction for assault.         See id.; see also

Commentary to Model Penal Code § 1.07 (noting that when a

defendant is convicted of two offenses based on inconsistent

findings of fact, “[c]ourts have long held that both convictions

cannot stand” (emphasis added)); cf. Commentary to HRS § 701-

109(1) (noting that HRS § 701-109(1) “reflects a policy to limit

the possibility of multiple convictions” (emphasis added)).

Therefore the assault conviction must be reversed.20


      20
            In Briones, this court held that the inconsistent verdict in that
case required a new trial. 74 Haw. at 458, 848 P.2d at 974. In Briones,
however, the defendant was convicted of both attempted murder in the first
degree and attempted murder in the second degree, see id. at 447, 848 P.2d at
970, which are subject to different statutory penalties. See HRS § 706-656.
The entry of judgment as to one count may have prejudiced the defendant
because it could not be determined which sentence was appropriate. See
Milanovich v. United States, 365 U.S. 551, 555 (1961) (holding that “setting
aside the shorter concurrent sentence [did not] suffice[] to cure any
prejudice [to the defendant],” because on remand the jury may have found her
guilty only of the crime carrying the shorter sentence).
            However, Briones also cited United States v. Daigle, 149 F. Supp.
409 (D.D.C. 1957). In Daigle, the federal district court remedied an
                                                                (continued...)

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                                    VII.

                                     A.

           With respect to the second question, Petitioner argues

that the court erred in instructing the jury solely on accomplice

liability as to Akau.      In Petitioner’s version of the facts, he

maintained that he did not rob the Complainant and if there was a

robbery, it was committed by Akau.         Petitioner argues that by

instructing the jury solely on accomplice liability for Akau, the

court adopted the prosecution’s version of the facts and rejected

Petitioner’s view of the case.        Petitioner contends that in doing

so, the court abrogated the jury’s prerogative as the finder of

fact by precluding the jury from determining that Akau committed

the robbery.    According to Petitioner, the court thus commented

on the evidence in violation of HRE Rule 1102.21


     20
        (...continued)
inconsistent verdict by reversing the conviction carrying the greater
statutory penalty. Id. at 414. Daigle reasoned that “the defendant was in no
[way] prejudiced” because he was subject only to a “less severe” sentence.
Id.
             Unlike in Briones and Milanovich, in the instant case the
penalties for Petitioner’s two convictions are identical. Additionally,
Respondent clearly focused on the robbery charge in closing argument and
sufficient evidence existed to convict the defendant on that charge. See
Liuafi, 1 Haw. App. at 643, 623 P.2d at 1283. Therefore, unlike in Briones,
no prejudice inheres in vacating the conviction of assault in the first
degree.
             Reversal of the assault conviction is also consistent with Ah
Choy. As explained supra, in Ah Choy this court held that it was error for a
court to instruct a jury that it could convict a defendant of both robbery in
the first degree and its “component offense” of attempted murder in the
absence of evidence that the defendant committed both offenses separately in
time. 70 Haw. at 622, 780 P.2d at 1101. This court therefore set aside the
defendant’s sentence with respect to the robbery conviction, but upheld the
defendant’s sentence with respect to attempted murder. Id at 623, 780 P.2d at
1101. Similarly, here, the conviction for robbery in the second degree is
affirmed, but the conviction for assault in the first degree is set aside.
     21
           HRE Rule 1102 states:
                                                                (continued...)

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            The ICA held the court “did not plainly err when it

instructed the jury as to [Akau] solely as an accomplice.”              Id.

The ICA determined that “[Petitioner] does not provide authority

. . . that it was a comment on the evidence to limit instructions

to the specific charge, nor . . . that it was plain error when

[the court] failed to, sua sponte, advance [Petitioner’s]

alternate defense theory . . . via jury instruction[,]” and

affirmed the conviction.       Id.

                                      B.

            At trial, Petitioner did not object to the court’s

instructions or argue that the court’s instructions constituted a

comment on the evidence under HRE Rule 1102.           Additionally,

Petitioner did not request any additional instructions reflecting

his position that although Akau was only charged as an

accomplice, Akau was solely responsible for the robbery.22

Accordingly, he waived any objection to the court’s instructions

under HRE Rule 1102.      See HRE Rule 103(a).

                                     VIII.

            Based on the foregoing, the November 29, 2011 judgment

of the court and the May 7, 2013 judgment of the ICA are affirmed

in part and reversed in part.        The case is remanded to the court



      21
       (...continued)
            The court shall instruct the jury regarding the law applicable to
            the facts of the case, but shall not comment upon the evidence.
            It shall also inform the jury that they are the exclusive judges
            of all questions of fact and the credibility of witnesses.
      22
            Petitioner also did not request that he be tried separately from
Akau. Rather, Petitioner stipulated to Respondent’s request to consolidate
the two trials.

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to enter an order dismissing the charge of Assault in the First

Degree, and the sentence imposed thereon, with prejudice.             The

November 29, 2011 judgment of the court and the May 7, 2013

judgment of the ICA as to Petitioner’s conviction for Robbery in

the Second Degree is affirmed.

Stuart N. Fujioka,                   /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
Brandon H. Ito
(on the briefs),                     /s/ Simeon R. Acoba, Jr.
for respondent
                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




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