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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000009
                                                              08-NOV-2013
                                                              10:46 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

            CHAD GETZ, Petitioner/Defendant-Appellant.


                            SCWC-12-0000009

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-12-0000009; CR. NO. 11-1-0608)

                            November 8, 2013

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

                OPINION OF THE COURT BY POLLACK, J.

          Petitioner/Defendant-Appellant Chad Getz (Getz) appeals

from the April 17, 2013 Judgment on Appeal of the Intermediate

Court of Appeals (ICA), affirming the Judgment of Conviction and
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Sentence entered by the Circuit Court of the First Circuit

(circuit court) on December 7, 2011.         For the reasons stated

herein, we hold that the circuit court erred by failing to give a

specific unanimity instruction and that this error was not

harmless beyond a reasonable doubt.         Accordingly, we vacate the

ICA and circuit court judgments and remand the case for a new

trial.

                                    I.

          On May 2, 2011, Respondent/Plaintiff-Appellee State of

Hawai#i (State) charged Getz with committing the offense of

Robbery in the Second Degree in violation of Hawai#i Revised

Statutes (HRS) § 708-841(1)(a).1         The State’s Complaint charged:

          On or about the 21st day of April, 2011, in the City and
          County of Honolulu, State of Hawai#i, CHAD GETZ, while in
          the course of committing a theft from Nordstrom, Inc., did
          use force against Angela Rueber and/or Jessie Saffery, a
          person who was present, with intent to overcome Angela
          Rueber’s and/or Jessie Saffery’s physical resistance or
          physical power of resistance, thereby committing the offense
          of Robbery in the Second Degree[.]

(Emphases added).




     1
          HRS § 708-841 (Supp. 2011) provides in relevant part:

          (1) A person commits the offense of robbery in the second
          degree if, in the course of committing theft or non-
          consensual taking of a motor vehicle:
                (a) The person uses force against the person of
                anyone present with the intent to overcome that
                person’s physical resistance or physical power of
                resistance[.]

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            Getz’s jury trial commenced on September 26, 2011.2

The State called two witnesses to testify: Nordstrom loss

prevention manager Angela Rueber (Rueber) and Nordstrom loss

prevention agent Jessie Saffery (Saffery).

            Around 9 p.m. on April 21, 2011, Rueber and Saffery

were in the Loss Prevention office, located on Nordstrom’s first

floor, conducting routine surveillance of the store using the

store’s closed-circuit television system.         Rueber and Saffery

observed Getz enter the store and walk down the escalator

carrying an Old Navy shopping bag.        They watched as Getz selected

a Coach handbag and walked away from the handbag department.                At

that point, Rueber left the security office to pursue Getz, while

Saffery remained in the office and continued watching the

monitor.    Rueber and Saffery maintained communication using two-

way radios with concealed ear pieces.

            After Getz selected the handbag, he placed it on his

shoulder with the Old Navy shopping bag.          Saffery informed Rueber

that Getz had walked past the cash register.          Rueber caught sight

of Getz heading in the direction of the exit towards the parking

garage.    Rueber testified that Getz “look[ed] back a couple of

times” and “put[] the handbag over his shoulder” so that it was

“sandwiched” between the shopping bag and his back.           As Rueber

followed Getz out of the exit, she had a Nordstrom salesperson

    2
           The Honorable Glenn J. Kim presided.

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accompany her.    The salesperson was “approximately five feet

behind” Rueber as they proceeded to the exit.

            Saffery testified that after she saw Getz exit the

store, she also left the Loss Prevention office and ran to assist

Rueber in apprehending Getz.

            Rueber testified that after Getz exited the store, he

walked towards the stairwell.       Rueber caught up to Getz at the

entrance to the stairs and told him that she was with Nordstrom

Loss Prevention and that he needed to come back into the store

with her.    Getz turned to face her and responded, “[N]o, I’m not

going anywhere with you,” then turned away and continued walking.

Rueber grabbed the handbag.      Getz did not let go of the bag and

began walking down the stairs, as Rueber continued to hold on to

the strap of the handbag.      Rueber testified, “[W]e were playing

tug-of-war with [the strap of the handbag] and he continued to

walk down and I went down the stairs with him ‘cause I didn’t let

go of the bag.”

            Rueber then tried to stop Getz from going down the

stairs by holding on to the bag with her right hand, putting her

left arm out in front of Getz, and grabbing the handrail with her

left hand.    Getz slowed down momentarily but “broke through” her

arm with his “body weight” and continued down the stairs.             Getz

and Rueber continued to hold on to the bag down three flights of

stairs, for approximately two minutes.         Rueber testified that

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Getz did not run down the stairs.

           While Rueber and Getz walked down the stairs, Rueber

tried unsuccessfully to pin Getz against the rail and to sweep

him off his feet by wrapping her legs between his legs to make

him lose balance.    Getz “used his weight to push through [Rueber]

and continue down the stairs,” but did not punch or kick Rueber,

try to throw her off of him, or verbally threaten her.

           At some point, Saffery caught up to Rueber and Getz on

the stairwell.    Rueber could not remember when Saffery arrived on

the stairs.   Saffery testified that she arrived when Rueber and

Getz were on the first flight of stairs.         Saffery stated that

upon catching up to Rueber and Getz, she “tried to stop [Getz]

along with [Rueber], but we just kept going down the next flight

of stairs.”

           Rueber testified that “somewhere between the second

landing and the third flight of stairs,” she “ripped out” the

handbag from Getz’s grip “either by my force or I pulled it

away.”   She then put Getz’s hand behind his back.          However, she

testified that Getz did not stop walking at that point, and they

“continued down to the third landing where it stopped.”

           According to Rueber, they stopped on the third landing

when “[Saffery] arrived and [Getz] said he was going to jump over

the railing, so I grabbed onto his shirt and there was a police

officer that showed up and shouted that he better listen to me.

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And that’s when he all of a sudden became compliant.”

           Rueber explained that Saffery helped her pull Getz’s

arms behind his back and recovered her handcuffs, which she had

dropped on the stairs just before Getz stopped on the third

landing.   Rueber testified that she and Saffery “were trying to

get [Getz’s] arms behind his back . . . but he was obviously

resisting.   And then he stopped resisting once the officer was

there.”    She stated that the police officer stood “at the top of

the third flight of stairs.”      However, the officer did not become

physically involved in the incident and “did not have any

involvement after that.”

           According to Saffery, Getz was “detained” on the third

landing when they “actually stopped.”        Saffery explained that

she, Rueber and Corpuz “ended up getting [Getz] against the

corner of the rail,” with Rueber on one side, and the salesperson

“holding [Getz’s] other arm.”       After Getz was cornered, she went

to retrieve Rueber’s handcuffs.

           After Getz was handcuffed, Rueber and Saffery escorted

Getz back to the Loss Prevention office.         Getz walked back to the

office willingly and was cooperative.        Rueber recovered the

handbag.   Getz was later released by the Loss Prevention officers

to police custody.

           About two minutes passed between the time Getz exited

and returned to the store.      Rueber testified that throughout the

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entire event, Getz did not “put a hand” on either her or Saffery.

Saffery, on the other hand, testified that Getz “grabbed” her arm

during the two-minute period, although she did not specify when

this occurred.        She also admitted that she did not mention this

in her written statement,3 and could not recall whether she

previously testified at a prior hearing that Getz had grabbed

her.       Saffery testified that Getz did not kick her or threaten

her verbally, or punch or assault Rueber.

               The State rested, and the defense presented no

witnesses.

                                        B.

               The court instructed the jury on the offense of Robbery

in the Second Degree as follows:

                     A person commits the offense of Robbery in the Second
               Degree if, in the course of committing theft, he uses force
               against the person of anyone present, with intent to
               overcome that person’s physical resistance or physical power
               of resistance.

                     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 the 21st day of April, 2011, in
               the City and County of Honolulu, State of Hawai#i, the
               defendant was in the course of committing theft; and

                     (2)   That while doing so, the defendant used his
               force against Angela Rueber and/or Jessie Saffery, a person
               who was present, with intent to overcome Angela Rueber
               and/or Jessie Saffery’s physical resistance or physical
               power of resistance.


       3
            Saffery “wrote a report describing the events of this case right
after the police came.”

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(Emphasis added).     This instruction was given by agreement

pursuant to the court’s proposed jury instructions.

            During the settling of jury instructions, the

court withdrew its standard unanimity instruction, which

provided:

            The law allows the introduction of evidence for the purpose
            of showing that there is more than one [act] [omission]
            [item] upon which proof of an element of an offense may be
            based. In order for the prosecution to prove an element,
            all twelve jurors must unanimously agree that [the same act]
            [the same omission] [possession of the same item] has been
            proved beyond a reasonable doubt.

(Brackets in original).       Defense counsel objected, explaining,

“in an abundance of caution because it’s a two-minute interval I

think where the issue lies on the stairwell, I would think that,

perhaps, that the jury would have to be unanimous at what point .

. . in the entire case that the Robbery would occur at.”             The

court responded that it would withdraw the instruction over

defense objection because “the alleged facts as they are in this

case, no Arceo is necessary.”        The jury was not instructed that

it was required to agree unanimously as to the identity of the

person against whom Getz used force—either Rueber or Saffery.

            During the State’s closing argument, the State

consistently referred to Rueber and Saffery collectively,

arguing, “They attempted to prevent Chad Getz from leaving with

Nordstrom merchandise.      They resisted his ability to escape with

Nordstrom property as security.”        (Emphases added).      The State



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described the facts of the case, stating, “They were physically

resisting [Getz’s] ability to leave with that bag, first grabbing

the bag, then attempting to grab him, and that’s exactly the

reason why he was continuing to push down those stairs, . . .

despite having two . . . loss prevention officers hanging off of

him, trying to stop him[.]”      (Emphasis added).

          Accordingly, the State argued with respect to the

elements of robbery: “[Getz] was in the course of committing

theft, he used force against Angela Rueber or Jessie Saffery, and

with the intent to overcome their physical resistance or power of

resistance.”   (Emphases added).      The State focused specifically

on the “and/or” language of the jury instruction, and argued,

“That means you can believe he used [force] against Angela Rueber

or Jessie Saffery or both.      And in reality it’s all of the

above.”

          The State reiterated, “All [the law] requires is that

he used force against them with the intent to overcome their

physical . . . power of resistance,” and concluded, “The

defendant in the course of committing theft . . . encountered two

dedicated professional security officers, and when they attempted

to do their jobs, he used force to try and get past them.”

(Emphases added).

          That same day, the jury returned its verdict, finding

Getz guilty as charged of Robbery in the Second Degree.

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            On December 7, 2011, the circuit court sentenced Getz

to ten years of imprisonment with a mandatory minimum term of

four years as a repeat offender.4          The court reduced the

mandatory minimum term from ten years to four years based on a

finding of strong mitigating circumstances, reasoning that

“Defendant’s criminal conduct neither caused nor threatened

serious harm to anyone,” and “8 or 9 juries out of 10 would have

acquitted the defendant of Robbery and probably convicted

defendant of a lower class C theft felony.”

                                    II.

            On appeal to the ICA, Getz argued that the evidence was

insufficient to prove that he used force “with the intent to

overcome the loss prevention officers’ physical resistance or

physical power of resistance.”        Getz emphasized that there was no

evidence that he punched, kicked or threatened Rueber or Saffery,

and argued that at most, he held onto the handbag and continued

walking away, which was insufficient to prove the force element

of robbery in the second degree.

            The ICA rejected Getz’s argument and held that “[t]here

was substantial evidence for the jury to conclude that in the

course of committing theft of a handbag, Getz used force against

Rueber with the intent to overcome her physical resistance or
      4
            HRS § 706-606.5(5) (Supp. 2011) authorizes the sentencing court to
reduce the mandatory minimum term mandated in HRS § 706-606.5(1) upon a
finding of strong mitigating circumstances, which include but are not limited
to the circumstances provided for in HRS §§ 706-621 and 706-606.

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physical power of resistance in the flight after the commission

of the theft.”5     State v. Getz, No. CAAP-12-0000009, 2013 WL

1117409, at *1 (Haw. App. Mar. 18, 2013) (SDO) (emphasis added).

Accordingly, the ICA affirmed Getz’s conviction.

            In his Application to this court, Getz maintains that

“the ICA gravely erred in concluding that there was substantial

evidence to sustain Petitioner’s conviction for Robbery in the

Second Degree.”

                                    III.

            “[T]he right of an accused to a unanimous verdict in a

criminal prosecution, tried before a jury in a court of this

state, is guaranteed by article I, sections 5 and 14 of the

Hawai#i Constitution.”6      State v. Arceo, 84 Hawai#i 1, 30, 928

P.2d 843, 872 (1996).      “‘[I]n criminal cases, this requirement of

unanimity extends to all issues which are left to the jury.’”

Id. (citing Andres v. United States, 333 U.S. 740, 748 (1948))

(brackets and ellipses omitted).         “The jury must unanimously find

that each material element of the offense has been proven—the

conduct, the attendant circumstances, and the result of

conduct—as well as the mental state requisite to each element.”

      5
            The Honorable Craig H. Nakamura, Katherine G. Leonard, and Lisa M.
Ginoza presided.
      6
            Article I, section 5 provides in relevant part that “[n] o person
shall be deprived of life, liberty or property without due process of law[.]”
Haw. Const. art. I, § 5. Article I, section 14 provides in relevant part that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial by an impartial jury . . . . Juries, where the crime charged
is serious, shall consist of twelve persons.” Haw. Const. art. I, § 14.

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State v. Jones, 96 Hawai#i 161, 169, 29 P.3d 351, 359 (2001).

“[I]nasmuch as, pursuant to this 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, the constitutional precept also

implicates the defendant’s right to due process of law[.]”

Arceo, 84 Hawai#i at 30, 928 P.2d at 872 (quotation marks,

ellipses and citations omitted).

          In Arceo, the prosecution aggregated the defendant’s

multiple acts of alleged sexual contact into one count of the

indictment and multiple acts of alleged sexual penetration into a

second count.   Id. at 3, 928 P.2d at 845.        On appeal, the

defendant argued in part that the prosecution was required to

identify the specific act of sexual contact and penetration for

which it was seeking the two convictions or alternatively, that

the trial court was required to instruct the jury that it must

unanimously agree on the same act(s) in reaching guilty verdicts.

Id. at 27, 928 P.2d at 869.      In addressing the defendant’s

argument as a matter of first impression, the Arceo court

concluded as an initial matter that sexual assaults are not

“continuing offenses” because the applicable statutes provide

that each distinct act in violation of the statutes constitutes a

separate offense under the Hawai#i penal code.          Id. at 21-22, 928

P.2d at 863-64.

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            The court then found that jurisdictions “holding that

sexual assaults are not ‘continuing offenses’ appear to be in

agreement that, where evidence of multiple culpable acts is

adduced to prove a single charged offense, the defendant is

entitled either to an election by the prosecution of the single

act upon which it is relying for a conviction or to a specific

unanimity instruction.”       Id. at 30-31, 928 P.2d at 872-73.            The

court also reviewed a long line of federal decisions decided

outside of the context of sexual assaults, holding that a general

unanimity instruction7 is not sufficient when a “conviction may

occur as a result of different jurors concluding that the

defendant committed different acts[.]”          Id. at 32, 928 P.2d at

874 (quoting United States v. Echeverry, 719 F.2d 974, 975 (9th

Cir. 1983)).    “To correct any potential confusion in such a case,

the trial judge must augment the general instruction to ensure

that the jury understands its duty to unanimously agree to a

particular set of facts.”       84 Hawai#i at 32, 928 P.2d at 874

(quoting Echeverry, 719 F.2d at 975).

            The Arceo court agreed with the logic of these

decisions and therefore held that

            when separate and distinct culpable acts are subsumed within
            a single count charging a sexual assault-any one of which
            could support a conviction thereunder-and the defendant is
            ultimately convicted by a jury of the charged offense, the
            defendant’s constitutional right to a unanimous verdict is
            violated unless one or both of the following occurs: (1) at

     7
            In Arceo, the jury was instructed generally that “your verdict
must be unanimous.” 84 Hawai#i at 10, 928 P.2d at 852.

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          or before the close of its case-in-chief, the prosecution is
          required to elect the specific act upon which it is relying
          to establish the “conduct” element of the charged offense;
          or (2) the trial court gives the jury a specific unanimity
          instruction, i.e., an instruction that advises the jury that
          all twelve of its members must agree that the same
          underlying criminal act has been proved beyond a reasonable
          doubt.

Id. at 32-33, 928 P.2d at 874-75 (emphases added).           Applying this

standard, the court held that the trial court erred in failing to

give a specific unanimity instruction, and that this error

required vacating the defendant’s conviction.          Id. at 33, 928

P.2d at 875.

          Accordingly, “the purpose of an Arceo unanimity

instruction is to eliminate any ambiguity that might infect the

jury’s deliberations respecting the particular conduct in which

the defendant is accused of engaging and that allegedly

constitutes the charged offense.”         State v. Valentine, 93 Hawai#i

199, 208, 998 P.2d 479, 488 (2000).

          In Valentine, the court explained that “absent an

election by the prosecution” of the specific act upon which it is

relying to establish the conduct element of the charged offense,

“two conditions must converge before an Arceo unanimity

instruction . . . is necessary: (1) at trial, the prosecution

adduces proof of two or more separate and distinct culpable acts;

and (2) the prosecution seeks to submit to the jury that only one

offense was committed.”     Id.




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          In this case, Getz was charged with a single count of

robbery in the second degree, which requires proof beyond a

reasonable doubt that the defendant “use[d] force against the

person of anyone present with the intent to overcome that

person’s physical resistance or physical power of resistance.”

HRS § 708-841(1)(a).

          In State v. Cordeiro, 99 Hawai#i 390, 407-08, 56 P.3d

692, 709-10 (2002), the court held that a specific unanimity

instruction was required, where the defendant was charged with a

single offense of robbery and the prosecution adduced evidence

that the defendant used force against two individuals; the

decedent and a witness.     The two acts of force took place during

the same sequence of events.      The witness drove the decedent and

then waited in the car while the decedent got out and spoke to

the occupant of a second vehicle parked nearby.          Id. at 400, 56

P.3d at 702.   The witness heard a gunshot and observed the

decedent lying by the side of the road, bleeding.           Id.   The

witness tried to start his car engine but the defendant ran up to

him and pointed a gun at his head, ordered him out of the car and

instructed him to dispose of the decedent’s body.           Id.   At trial,

the prosecution submitted to the jury that the defendant’s

alleged act of shooting the decedent or threatening the witness

could support a guilty verdict as to first degree robbery.              Id.

at 407, 56 P.3d at 709.     The circuit court generally instructed

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the jury that its verdict must be unanimous, but did not instruct

the jury that it was required unanimously to agree as to the

identity of the person against whom the defendant used force.

Id.

             On these facts, the defendant argued that the trial

court plainly erred by failing to give a specific unanimity

instruction as to the identity of the person against whom the

defendant used force.        Id.   The prosecution conceded that the

trial court’s error warranted vacating the defendant’s robbery

conviction.      Id.   The Cordeiro court agreed with the

prosecution’s concession, finding that a

             review of the record confirm[ed] that the circuit court’s
             instructions were prejudicially insufficient and erroneous,
             inasmuch as the prosecution (1) adduced evidence of two
             separate and distinct acts that arguably supported the
             requisite “use of force” by [the defendant] (i.e., shooting
             [the decedent] and threatening [the witness] with a firearm)
             (2) failed to make an election as to the particular act on
             the basis of which it was seeking conviction, and (3)
             represented to the jury that only a single offense was
             committed but that either act could support a guilty verdict
             as to first degree robbery.

Id. (emphases added).        Thus, the court held that the “circuit

court plainly erred in failing to instruct the jury that it was

required to agree unanimously as to the person against whom [the

defendant] used force,” and vacated the defendant’s robbery

conviction.      Id. at 407-08, 56 P.3d at 709-10.

             Similarly in this case, the State adduced evidence of

Getz’s use of force against two people, Rueber and Saffery,

failed to make an election as to the person against whom Getz

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used force, and represented to the jury that Getz’s use of force

against either person could support a single offense of robbery

in the second degree.     With regard to Rueber, the State presented

evidence that Getz and Rueber “played tug-of-war” with the

handbag as they walked down the stairs and that Getz “used his

weight” to continue walking as Rueber attempted various maneuvers

to stop him.   As for Saffery, the State presented evidence that

Getz continued to walk down the stairs as Saffery attempted to

help Rueber stop him, and that Getz “grabbed” Saffery’s arm.

          The State did not elect whether it was relying on the

use of force against Rueber or Saffery to establish the requisite

conduct element.    The State argued to the jury during closing

argument that because of the “and/or” language used in the jury

instruction, “[t]hat means you can believe he used [force]

against Angela Rueber or Jessie Saffery or both.”           Additionally,

no specific unanimity instruction was given to the jury,

informing them that they were required to agree unanimously as to

the identity of the person against whom Getz used force.

Instead, the jury was instructed that it could return a guilty

verdict on the robbery offense if it found beyond a reasonable

doubt that “the defendant used his force against Angela Rueber

and/or Jessie Saffery, . . . with intent to overcome Angela

Rueber and/or Jessie Saffery’s physical resistance or physical

power of resistance.”     (Emphases added).

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            Therefore, in returning the guilty verdict as to second

degree robbery, some jurors may have believed that Getz used

force against Rueber but not Saffery, other jurors may have

believed that he used force against Saffery but not Rueber, and

still others may have believed that Getz used force against both

Rueber and Saffery.     Under these circumstances, an Arceo

unanimity instruction was required to “eliminate any ambiguity

that might [have] infect[ed] the jury’s deliberations respecting

the particular conduct in which [Getz] [was] accused of engaging

and that allegedly constitute[d]” the offense of robbery in the

second degree.    See Valentine, 93 Hawai#i at 208, 998 P.2d at

488.   Accordingly, the circuit court erred in failing to instruct

the jury that it was required to agree unanimously as to the

person against whom Getz used force.

                                    IV.

            “This court has stated that when jury instructions or

the omission thereof are at issue on appeal, the standard of

review is whether, when read and considered as a whole, the

instructions given are prejudicially insufficient, erroneous,

inconsistent or misleading.”      State v. Mark, 123 Hawai#i 205,

219, 231 P.3d 478, 492 (2010) (citing State v. Gomes, 93 Hawai#i

13, 18, 995 P.2d 314, 319 (2000)) (quotation marks and brackets

omitted).   “[T]he real question becomes whether there is a

reasonable possibility that error might have contributed to

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conviction.   If there is such a reasonable possibility in a

criminal case, then the error is not harmless beyond a reasonable

doubt, and the judgment of conviction on which it may have been

based must be set aside.”      Arceo, 84 Hawai#i at 12, 928 P.2d at

854 (citing State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308

(1981) and State v. Holbron, 80 Hawai#i 27, 32, 904 P.2d 912, 917

(1995)) (quotation marks, brackets and citations omitted).

           In this case, Getz objected to the circuit court’s

withdrawal of the standard unanimity instruction.           The court

responded that an Arceo instruction was not necessary based on

the alleged facts.    However, Getz did not raise the lack of a

specific unanimity instruction as a point of error on appeal to

the ICA.   See Hawai#i Rules of Appellate Procedure Rule 28(b)(4)

(point of error not presented on appeal in accordance with Rule

28 “will be disregarded, except that the appellate court, at its

option, may notice a plain error not presented”).

           In Arceo, the court held that the circuit court’s

failure to give a specific unanimity instruction prejudiced the

defendant’s “substantial constitutional right to unanimous jury

verdicts . . . in such a manner as to give rise to plain error.”

84 Hawai#i at 33, 928 P.2d at 875.        The court continued, “And

inasmuch as we cannot say that there was no reasonable

possibility that the circuit court’s error contributed to Arceo’s

convictions, we hold that the error was not harmless beyond a

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reasonable doubt.”      Id.   The court thus vacated Arceo’s

conviction and remanded the matter for a new trial.8            Id.

            In accordance with Arceo, subsequent cases finding that

the trial court erroneously failed to give a specific unanimity

instruction have applied plain error, vacated the conviction, and

remanded for a new trial.       See Cordeiro, 99 Hawai#i at 408, 56

P.3d at 710 (“Because the circuit court’s insufficient jury

instructions prejudiced Cordeiro’s substantial constitutional

right to a unanimous jury verdict, the error was ‘plain’.”);

State v. Kassebeer, 118 Hawai#i 493, 511, 193 P.3d 409, 427

(2008) (“Under Arceo and its progeny, it was plain error for the

circuit court not to issue a specific unanimity instruction to

the jury”).

            Accordingly, pursuant to Arceo, the circuit court’s

failure to give a specific unanimity instruction in this case

constituted plain error.       As to whether there was a reasonable

possibility that the error contributed to the conviction, Getz’s

alleged culpable conduct occurred within two minutes and involved

both Rueber and Saffery.       Absent a specific unanimity

instruction, the jurors may not have been in agreement over the

identity of the person against whom Getz used the requisite

force.


     8
            The court found that because the “evidence adduced at trial was
clearly sufficient to support Arceo’s convictions, double jeopardy concerns
are not implicated by a new trial.” Id. at 33 n.40, 928 P.2d at 875 n.40.

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            Furthermore, as the circuit court recognized in the

sentencing phase of this case, “Defendant’s criminal conduct

neither caused nor threatened serious harm to anyone.”            The

circuit court found that “8 or 9 juries out of 10 would have

acquitted the defendant of Robbery and probably convicted

defendant of a lower class C theft felony.”

            Based on the above, there is at least a reasonable

possibility that the circuit court’s error in failing to give a

specific unanimity instruction contributed to Getz’s conviction.

Therefore, the error was not harmless beyond a reasonable doubt,

and Getz’s second degree robbery conviction must be vacated and

the case remanded to the circuit court for a new trial.

                                    V.

            In light of the remand, we address the sufficiency of

the evidence supporting Getz’s conviction.         See State v. Kaulia,

128 Hawai#i 479, 496, 291 P.3d 377, 394 (2013) (“The Double

Jeopardy Clause bars retrial of a defendant where reversal is

based on the insufficiency of the evidence.”); Arceo, 84 Hawai#i

at 33 n.40, 928 P.2d at 875 n.40 (“Because our disposition of the

present appeal is grounded in ‘trial error’ and the evidence

adduced at trial was clearly sufficient to support Arceo’s

convictions, double jeopardy concerns are not implicated by a new

trial.”).



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          “‘In reviewing the legal sufficiency of the evidence on

appeal, the test is whether, viewing the evidence in the light

most favorable to the State, substantial evidence exists to

support the conclusion of the trier of fact.’”          Kaulia, 128

Hawai#i at 496, 291 P.3d at 394 (quoting State v. Lubong, 77

Hawai#i 429, 432, 886 P.2d 766, 769 (App. 1994)).

          In this case, Getz used his body weight to continue

walking down the stairs while Rueber and Saffery attempted to

stop him, and held onto the handbag when Rueber attempted to pull

it away from him.    Rueber testified that Getz was “obviously

resisting” while she and Saffery attempted to detain him, and

Saffery testified that Getz grabbed her arm.          Although Getz

appears to have used minimal force, when viewing the evidence in

the light most favorable to the State, there was sufficient

evidence adduced to support his conviction.          State v. Chen, 77

Hawai#i 329, 338, 884 P.2d 392, 401 (App. 1994) (“‘Issues going

to reasonable doubt are generally matters for the fact finder to

determine.’”) (quoting State v. Gabrillo, 10 Haw. App. 448, 457,

877 P.2d 891, 895 (1994)) (brackets and ellipses omitted).

          Accordingly, double jeopardy concerns are not

implicated by remanding the case for a new trial based on the

circuit court’s failure to give a specific unanimity instruction.




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                                    VI.

          Based on the foregoing, we hold that the circuit court

plainly erred by failing to instruct the jury that it was

required to agree unanimously as to the person against whom Getz

used force.   We therefore vacate the ICA and circuit court

judgments and remand the case for a new trial.

Summer M.M. Kupau,                        /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
James M. Anderson,
for respondent                            /s/ Simeon R. Acoba, Jr.

                                          /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack




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