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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000123
                                                              12-FEB-2014
                                                              09:33 AM




                            SCWC-10-0000123

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                    vs.

                             KAWA SALAS,
                  Petitioner/Defendant-Appellant.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-10-0000123; CR. NO. 08-1-0443)

                       MEMORANDUM OPINION
   (By: Recktenwald, C.J., Nakayama, McKenna and Pollack, JJ.
     with Acoba, J., concurring and dissenting separately)

          Petitioner/Defendant-Appellant Kawa Salas (Salas)

appeals from the July 3, 2013 Judgment on Appeal of the

Intermediate Court of Appeals (ICA) affirming the Circuit Court

of the Third Circuit’s (circuit court) judgment of conviction and

sentence for robbery in the second degree.         Pursuant to our prior

decisions in State v. Cordeiro, 99 Hawai#i 390, 56 P.3d 692

(2002), and State v. Getz, No. SCWC-12-0000009, __ Hawai#i __,

313 P.3d 708 (2013), we hold that the circuit court plainly erred
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when it failed to give the jury a specific unanimity instruction.

Because that error was not harmless beyond a reasonable doubt, we

vacate the circuit court and ICA judgments and remand the case

for a new trial.

                                    I.

          During a jury trial for first degree robbery, the State

adduced evidence that Salas and two other men allegedly accosted

a group of four complaining witnesses (CWs) at a scenic campsite.

The State alleged that Salas stood in front of the CWs’ tents and

shadowboxed in a threatening manner while his co-defendant

demanded money and drugs.      The State also alleged that Salas

verbally threatened the CWs.      In sum, the State’s theory of the

case was that Salas had accosted all four of the CWs.

          At the close of trial, the jury was given the following

unanimity instruction:
          The law allows the introduction of evidence . . . for the
          purpose of showing that there is more than one act upon
          which proof of an element of an offense may be based.

          In order for the prosecution to prove an element, all 12
          jurors must unanimously agree that the same act has been
          proven beyond a reasonable doubt.

          . . . .

          Your verdict must be unanimous.

This instruction advised the jury that it was required to

unanimously agree upon the specific act that the defendant

committed that constituted the offense charged, or an element


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thereof.    However, the circuit court did not instruct the jury

that it was required to unanimously agree upon the identity of

the target of Salas’s conduct, and neither side requested such an

instruction.    After deliberation, the jury found Salas guilty of

robbery in the second degree pursuant to HRS § 708-841.1

            Salas appealed to the ICA and his conviction was

affirmed.    However, his attorney failed to raise the lack of a

specific unanimity instruction before the ICA, and again failed

to raise the issue in Salas’s application for writ of certiorari.

Nonetheless, a defendant’s right to a unanimous jury verdict is

constitutionally guaranteed, and thus, the failure to give a

specific unanimity instruction when one is warranted may be

reviewed for plain error.

                                     II.

            “Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of

the court.”    Hawai#i Rules of Penal Procedure Rule 52(b)(2008).



     1
            HRS § 708-841 provided then as it does now:

            (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:

            . . . .

               (b) The person threatens the imminent use of force
               against the person of anyone who is present with intent
               to compel acquiescence to the taking of or escaping with
               the property[.]

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“This court will apply the plain error standard of review to

correct errors that 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.”             State

v. Taylor, SCWC-30161, 2013 WL 3967699, at *9 (Haw. Aug. 19,

2013) (internal citations omitted).        Plain error may be corrected

on appeal unless the record affirmatively reveals that the error

was harmless beyond a reasonable doubt.         See State v. Miller, 122

Hawai#i 92, 100, 223 P.3d 157, 165 (2010).

                                  III.

          A defendant’s right to a unanimous jury verdict in a

criminal prosecution is guaranteed by article 1, sections 5 and

14 of the Hawai#i constitution.      See State v. Arceo, 84 Hawai#i 1,

30, 928 P.2d 843, 872 (1996).       For a verdict to be unanimous,

“[t]he jury must unanimously find that each material element of

the offense has been proven -- the conduct, the attendant

circumstances, and the result of the conduct -- as well as the

mental state requisite to each element.”         State v. Jones, 96

Hawai#i 161, 169, 29 P.3d 351, 359 (2001).         In some

circumstances, a specific unanimity instruction is required “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


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the charged offense.”     State v. Valentine, 93 Hawai#i 199, 208,

998 P.2d 479, 488 (2000).      Specifically, a unanimity instruction

must be given if “(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.   Thus, when a defendant is charged with a single

offense of robbery and the prosecution adduces evidence that the

defendant used or threatened to use force against more than one

individual, the circuit court is required to instruct the jury

that it must agree unanimously as to the person against whom the

defendant used or threatened to use force.         See Cordeiro, 99

Hawai#i at 407-08, 56 P.3d at 709-10.

           For example, in Cordeiro, the prosecution introduced

evidence that the defendant shot one man, and then pulled his gun

on a second man while ordering him to dispose of the first man’s

body.   99 Hawai#i at 400, 56 P.3d at 702.        At trial, the

prosecution argued to the jury that either of the defendant’s

acts could support a first degree robbery conviction.            Id. at

407, 56 P.3d at 709.     After closing arguments, the circuit court

instructed the jury that its verdict must be unanimous, but did

not instruct the jury that it must unanimously agree on the

identity of the person against whom the defendant used force.

Id.   On these facts, we held that the circuit court plainly erred


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in failing to give the jury a specific unanimity instruction.

Id. at 408, 56 P.3d at 710.      Because we could not say that the

error was harmless beyond a reasonable doubt, we vacated

Cordeiro’s robbery conviction.       Id.

           Likewise, in Getz, the prosecution adduced evidence

that the defendant used force against two security guards in an

attempt to steal a handbag.      __ Hawai#i at __, 313 P.3d at 710-

11.   The State argued to the jury that it could find the

defendant guilty of robbery if they unanimously agreed that the

defendant had used force against either the first security guard

or the second one.    Id. at __, 313 P.3d at 712.        However, the

jury was not instructed that it must unanimously agree upon the

identity of the person against whom the defendant used force.

Id.   We held that the failure to give a specific unanimity

instruction prejudiced the defendant’s substantial constitutional

right to a unanimous jury verdict, and that the error was not

harmless beyond a reasonable doubt.        Id. at __, 313 P.3d at 716.

Accordingly, we applied the plain error doctrine, vacated the

defendant’s conviction, and remanded for a new trial.            Id.

           Here, the State charged Salas with one count of

robbery.   At trial, the State adduced evidence that Salas

threatened to use force against a group of four individuals who

were sharing a campsite.      Based on these facts, the circuit court


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was required to instruct the jury that it must unanimously agree

upon the identity of the person against whom Salas threatened to

use force.    The circuit court’s failure to do so prejudiced

Salas’s substantial constitutional right to a unanimous jury

verdict, and thus, constitutes plain error.           Because there is a

reasonable possibility that this error might have contributed to

Salas’s conviction, we cannot say that it was harmless beyond a

reasonable doubt.

                                     IV.

            For the reasons set forth above, we vacate the ICA’s

judgment on appeal and the circuit court’s judgment and

conviction.    This case is hereby remanded to the circuit court

for further proceedings consistent with this opinion.2

            DATED:   Honolulu, Hawai#i, February 12, 2014.

Joy A. San Buenaventura                    /s/ Mark E. Recktenwald
for petitioner
                                           /s/ Paula A. Nakayama
Darien W.L.C. Nagata
for respondent                             /s/ Sabrina S. McKenna

                                           /s/ Richard W. Pollack



      2
            We acknowledge Justice Acoba’s concurring and dissenting opinion,
which raises issues surrounding probable cause to support the indictment,
probable cause for Salas’s arrest, suppression of pretrial identifications,
and eyewitness identification instructions. In light of our decision to
vacate the conviction and to remand the case for new trial, it is unnecessary
for this court to address the merits of these issues. However, we agree with
Justice Acoba’s observation that “the court must give a specific eyewitness
identification instruction on remand.” See Concurring and Dissenting Opinion
at 19-20.

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