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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-13-0000061
                                                                 31-OCT-2016
                                                                 08:37 AM




              IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

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

                                      vs.

     PATRICK DEGUAIR, JR., Petitioner/Defendant-Appellant.
________________________________________________________________

                               SCWC-13-0000061

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                  (CAAP-13-0000061; CR. NO. 08-1-0773)

                              October 31, 2016

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

                   OPINION OF THE COURT BY McKENNA, J.

                              I.   Introduction

        This case arises out of the 2008 robbery of the Aiea Cue,

in which three intruders restrained four individuals inside a

pool hall and stole cash and other valuables.             Two of the

intruders, Ju Young Woo (“Woo”) and David Teo (“Teo”), entered
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into cooperation agreements with the State, and the third

intruder, Patrick Deguair, Jr. (“Deguair”), continued on to a

jury trial.       Deguair’s defense was that Woo and Teo coerced him

into participating in the crime.             The jury found Deguair guilty

on all counts:        Count 1 (Robbery in the Second Degree, a class B

felony), Count 2 (Kidnapping as a class A felony), and Counts 3,

4, and 5 (Kidnapping as a class B felony).             The jury also

answered interrogatories finding that each act of kidnapping was

committed as a continuing course of conduct, with no separate

and distinct intent from the robbery.            Therefore, pursuant to

Hawaii Revised Statutes (“HRS”) § 701-109(1)(e) (2014), which

prohibits multiple convictions for offenses committed as a

continuing course of conduct, the Circuit Court of the First

Circuit1 merged Count 1 (the robbery, a lesser grade class B

felony) into Count 2 (one of the kidnappings, a higher grade

class A felony).

          On appeal, Deguair argued that the circuit court erred in

convicting him of kidnapping as a class A felony on Count 2, as

he was entitled to the mitigating defense,2 which would have

reduced the kidnapping to a class B felony.              A majority of the


1
      The Honorable Glenn J. Kim presided.
2
      The mitigating defense is contained in HRS § 707-720(3) (2014). It
states, as it did at the time of the alleged offense, “In a prosecution for
kidnapping, it is a defense which reduces the offense to a class B felony
that the defendant voluntarily released the victim, alive and not suffering
from serious or substantial bodily injury, in a safe place prior to trial.”


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Intermediate Court of Appeals (“ICA”) agreed, vacating the

circuit court’s Judgment of Conviction and Sentence as to Count

2 as a class A felony and remanding the case for entry of a

judgment of conviction on Count 2 as a Class B felony and for

resentencing solely on Count 2.              State v. Deguair, CAAP-13-

0000061 (App. Feb. 27, 2015) (mem.) at 3.             The ICA rejected

Deguair’s other points of error and affirmed the circuit court’s

judgment with respect to the convictions and sentences on Counts

3, 4, and 5.       Deguair, mem. op. at 16.

          On certiorari, Deguair argues that all of his convictions

are now of the same class (class B felonies).              He contends that

HRS § 701-109(1)(e) requires the kidnapping convictions to be

“merged” into the robbery conviction.             He also asserts that the

ICA gravely erred in holding that the circuit court properly

excluded prior bad act evidence that Woo and Teo were violent,

worked for Oahu criminal organizations providing protection, and

needed money.       Deguair also contends that the ICA gravely erred

in holding that the circuit court properly declined to declare a

mistrial after the prosecutor questioned Deguair about whether

he and Teo had shot guns at the Koko Head shooting range.3


3
      Deguair also presents the following questions on certiorari, which we
do not further address herein, as Deguair’s arguments that the ICA erred are
unpersuasive:
            2) Did the Intermediate Court of Appeals Gravely Err in
            Ruling That the Circuit Court Did Not Err in Denying the
            Motion to Suppress Evidence?
                                                             (continued . . .)

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        We hold that the ICA did not err in concluding that the

circuit court did not abuse its discretion in granting the

State’s motion in limine as to the prior bad acts of Teo and

Woo.     We also hold that the ICA did not err in concluding that

the circuit court did not abuse its discretion in declining to

declare a mistrial.       We hold, however, that the ICA erred in

remanding this case for resentencing solely on the kidnapping

conviction, foreclosing the possibility that the kidnapping

convictions could merge into the robbery conviction.              We hold

that, under HRS § 701-109(1)(e), Deguair committed the

kidnappings as part of a continuous course of conduct in

committing the robbery; therefore, the kidnapping convictions

should merge into the robbery conviction.           Accordingly, we

vacate the ICA’s April 21, 2015 Judgment on Appeal, and the

circuit court’s January 2, 2013 Judgment of Conviction and

Sentence.     On remand, the circuit court is directed to reinstate

Deguair’s conviction on Count 14, to dismiss the convictions on




(. . . continued)
            . . . .
            5) Did the Intermediate Court of Appeals Gravely Err in
            Ruling That the Circuit Court Did Not Err in Denying
            Defendant’s Motion for New Trial?
4
      Prior to entering its judgment of conviction and sentence on the four
kidnapping offenses (Counts 2 through 5), the circuit court had dismissed the
guilty verdict on the robbery offense (Count 1). Therefore, in addition to
vacating the circuit court’s judgment of conviction and sentence, this court
instructs the circuit court to reinstate the robbery conviction on Count 1.
See, e.g., State v. Timoteo, 87 Hawaii 108, 109, 119, 952 P.2d 865, 866, 876
(1997) (instructing the circuit court to reinstate a jury’s guilty verdict
                                                              (continued . . .)

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Counts 2, 3, 4, and 5, and to resentence Deguair on Count 1

only, pursuant to HRS § 701-109(1)(e), as the kidnapping

convictions merged into the robbery conviction.

                                II.   Background

A.    Indictment

          On May 21, 2008, the State filed an Indictment against

Deguair, Woo, and Teo alleging that they committed Robbery in

the First Degree (Count 1), in violation of HRS § 708-

840(1)(b)(ii) (2014).5         The Indictment also alleged that they

kidnapped Paul Beltran (Count 2), Ruth Lemons (Count 3), John

Llacuna (Count 4), and Talagu Moliga (Count 5), all in violation

of HRS § 707-720(1)(e) (2014).6           Before trial, both Woo and Teo

entered into plea agreements and agreed to testify for the

State, and Deguair proceeded to trial on his own.




(. . . continued)
against the defendant for simple trespass and remanding the case to the
circuit court for resentencing).
5
    That statute provides, in relevant part, as it did at the time of the
alleged offense:
            Robbery in the first degree. (1) A person commits the
            offense of robbery in the first degree if, in the course of
            committing theft . . .      (b) The person is armed with a
            dangerous instrument . . . and: . . .   (ii) The person
            threatens the imminent use of force against the person of
            anyone present with intent to compel acquiescence to the
            taking of or escaping with the property. . . .
6
      That statute provides, as it did at the time of the alleged offenses,
“(1) A person commits the offense of kidnapping if the person intentionally
or knowingly restrains another person with intent to: . . . (e) Terrorize
that person or a third person. . . .”



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B.        The State’s Motion in Limine No. 2

          On August 29, 2012, the State filed a Motion in Limine No.

1 requesting an order from the circuit court compelling Deguair

to disclose “any and all evidence the defense intends to use” to

support the anticipated duress7 and choice of evils8 defenses.



7
      HRS § 702-231 (2014) codifies the duress defense. It states, in
relevant part, as it did at the time of the alleged offenses, the following:
            (1) It is a defense to a penal charge that the defendant
            engaged in the conduct or caused the result alleged because
            he was coerced to do so by the use of, or a threat to use,
            unlawful force against his person or the person of another,
            which a person of reasonable firmness in his situation
            would have been unable to resist.
            (2) The defense provided by this section is unavailable if
            the defendant recklessly placed himself in a situation in
            which it was probable that he would be subjected to duress.
            The defense is also unavailable if he was negligent in
            placing himself in such a situation, whenever negligence
            suffices to establish the requisite state of mind for the
            offense charged. . . .
            (5) In prosecutions for any offense described in this Code,
            the defense asserted under this section shall constitute an
            affirmative defense. The defendant shall have the burden of
            going forward with the evidence to prove the facts
            constituting such defense, unless such facts are supplied
            by the testimony of the prosecuting witness or circumstance
            in such testimony, and of proving such facts by a
            preponderance of the evidence pursuant to section 701-115.
8
      HRS § 703-302 (2014) codifies the choices of evils defense. It states,
in relevant part, as it did at the time of the alleged offenses, the
following:

               (1) Conduct which the actor believes to be necessary to
               avoid an imminent harm or evil to the actor or to another
               is justifiable provided that:
               (a) The harm or evil sought to be avoided by such conduct
               is greater than that sought to be prevented by the law
               defining the offense charged;
               (b) Neither the Code nor other law defining the offense
               provides exceptions or defenses dealing with the specific
               situation involved; and
               (c) A legislative purpose to exclude the justification
               claimed does not otherwise plainly appear. . . .




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       That same day, Deguair’s counsel sent the State two letters

setting forth prior bad act evidence concerning Teo and Woo that

Deguair intended to proffer.        Two days later, on August 31,

2012, the State filed a Motion in Limine No. 2 seeking to

preclude reference to the following allegations:

           1. David Teo is/was known as a strong arm and debt
           collector for Oahu crime organizations.

           2. David Teo participated in the “taxing” of legal and
           illegal gambling businesses for protection of their
           businesses.

           3. In [sic] or about March 2008, David Teo smashed a man’s
           face into the windshield of a car while attempting to
           collect money from the man, in the parking lot of Tony
           Roma’s restaurant in Pearl City.

           4. David Teo told Defendant Patrick Deguair, Jr. that he
           (David Teo) had just gotten out of jail and “needed this
           take.”

           5. David Teo said to Defendant Patrick Deguair, Jr.,
           “Remember what happened to the guy in the parking lot.”

           6. Ju Young Woo protected criminal organizations operating
           in the Pearl City and Aiea Communities.

           7. Ju Young Woo received and sold stolen motor vehicle
           parts.

           8.   Ju Young Woo collected money for drug dealers.

           9. Ju Young Woo beat several people with a metal pipe on
           the bike path near the ABC Used Auto Parts.

           10. Aiea Cue was not paying its “tax” for protection to
           “the Samoans.”

           11. Ju Young Woo needed money to pay a lawyer for
           representation concerning an arrest for stealing a tractor.

The State objected to the timing of the disclosure of this HRE

Rule 404(b) evidence, as the trial had been pending for four

years, and Deguair provided notice to the State of these bad

acts with only two weeks before the start of trial.

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       At a hearing on the motion, Deguair’s counsel argued that

the bad act evidence was relevant to his duress and choice of

evils defenses.        Specifically, he argued that the jury needed to

know what Deguair knew of Teo and Woo in order to judge whether

a person of reasonable firmness would have been able to resist

these men.       The State counter-argued that the probative value of

the evidence was “so attenuated” that it was “outweighed by 403

concerns. . . .”

       The circuit court ruled as follows:

               I am going to . . . specifically make that 403
               determination that any probative value this might have
               along the lines that [Deguair’s counsel] has brought up as
               to that element of the duress defense . . . would be I
               think substantially outweighed by the danger of unfair
               prejudice and confusion of the issues, et cetera. . . . I’m
               going to grant the State’s motion to preclude all of these
               except . . . three and five. Because . . . that is a
               threat, certainly an implied threat, the use of force that
               would go directly to the Defense’s duress defense which I’m
               strongly inclined to include in this case when it goes to
               the jury.

C.     Trial

       1.   Undisputed Facts

       The facts about the robbery elicited at trial are not

disputed.       Deguair did not deny his participation (with Teo and

Woo) in robbing the Aiea Cue and kidnapping four individuals who

were there.       Instead, Deguair’s primary defense was duress.             He

claimed he took part in Woo’s plan because he was scared of Teo.

       The facts elicited at trial regarding the events of April

3, 2008 were as follows.          At closing time at the Aiea Cue, four


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friends remained on the premises:         John Llacuna (the cashier),

Ruth Lemons (Llacuna’s girlfriend), Paul Beltran (who helped

with cleaning and odd jobs), and Tony Moliga (security and

parking lot attendant).      Beltran was at the back door trying to

lock it, when he heard knocking.          Llacuna went to the door, when

it suddenly burst open, and Teo, Deguair, and Woo entered.

       Beltran ran toward the front door, and Teo pursued him,

tackled him to the ground, handcuffed him behind his back, and

left him face-down on the ground.         Llacuna, Lemons, and Moliga

were herded to the rear of the Aiea Cue and ordered to lie face

down and to relinquish their cell phones.          Teo later carried

Beltran over to them.

       It appeared that the three intruders were working together.

Deguair used a crowbar to strike and redirect the videocameras.

Woo used a torch to cut open the ATM and coin machine.             The cash

register was also opened with a nearby key.           Teo, Deguair, and

Woo exited the Aiea Cue after taking money and other property.

       2.   Testimony of Woo

       The State called Woo who testified that he met Deguair

shortly before the Aiea Cue robbery.         Woo explained that Deguair

was the mastermind behind the robbery and assigned Woo the job

of cutting open the ATM and change machine, assigned Teo the job

of getting people on the ground, and gave himself the job of

redirecting the videocameras.        Woo testified that he did not

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force Deguair to participate in the robbery, and that Deguair

participated willingly.      At the close of Woo’s testimony, the

State rested.

       3.   Testimony of David Teo

       The defense called Teo, an acquaintance of Deguair’s.             He

testified that the robbery was Deguair’s plan, that he did not

force Deguair to make a plan, and that Deguair participated

willingly in the robbery.

       4.   Testimony of Patrick Deguair, Jr.

       Outside the jury’s hearing, before Deguair took the stand,

Deguair’s counsel asked the circuit court if he could elicit

testimony that Deguair was afraid of Woo because he saw Woo kill

a man in March 2008.      The circuit court decided to allow the

testimony to come in.

       Deguair then took the stand.       He testified that he

witnessed Teo “walk[] up behind [a] guy and smash[] his head

into” a car windshield, bloodying the man’s face, and causing

the man to pass out on the ground.         He testified that Teo told

him to buy an acetylene torch and fill it with gas a week before

the Aiea Cue robbery.

       Deguair also testified that he contacted Woo for motorcycle

mirrors, and Woo asked Deguair to meet him at Aiea Cue and,

later, the junkyard.      Woo gave Deguair the mirrors at the

junkyard.     When Deguair asked how much he owed, Woo told him not

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to worry about it and that Deguair could help him later.               Woo

then started telling Deguair about his plan to rob the Aiea Cue.

Woo said people inside the Aiea Cue would let him in.             He

intended to take $50,000 that he said was in a safe at the

bottom of the change machine.        Woo asked Deguair to go with him

to turn the videocameras up.       Deguair told him he could not be

involved in the robbery because he had a good federal job.               Just

then, an SUV pulled up and Teo exited and approached them.

While Deguair continued to turn Woo down, Teo “surprise[d]”

Deguair, “got [him] from the side and . . . pin[ned Deguair’s]

head against . . . the SUV.”       Teo banged Deguair’s head on the

side of the SUV and squeezed Deguair’s neck.            Teo told Deguair,

“Punk, I need this take. . . Remember what happened in the

parking lot?    You like that happen to you?”         Deguair believed

Teo was referring to the incident in the parking lot when Teo

smashed a man’s face into a car windshield.           At that point, Woo

came closer to Deguair and said, “Come on, you gotta do this. .

. . Brah, I give you free parts. . . .          What?   You too good for

us?    You cannot do this kind stuff when we need your help?”

       Deguair testified that he got into the SUV because he was

afraid of Teo.     He testified that Woo produced the crowbar.

When the group arrived at Aiea Cue, Deguair paused and did not

get out of the SUV, so Teo said, “Punk, no make me come in there

and get you.”    Deguair testified that he did not go voluntarily

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through the Aiea Cue door and he did not feel free to leave.

Deguair admitted that he turned the videocameras towards the

ceiling.    Woo then told him to look for a “turbo box” by the

cash register area, and Deguair complied.          He went to the cash

register area, but there was no box there, so Woo told Deguair

to tell Teo that, and Teo started ransacking the cashier’s area.

Meanwhile, Woo started cutting the change machine open.             Woo

then called Deguair over and used his pry bar to pry open the

machine.    Woo ordered Deguair to get the kidnappees’ cell

phones, and Deguair complied.

       At the end of Deguair’s direct examination, the State asked

the defense to make “an affirmative declaration on the record

that it has abandoned the duress defense as to Woo concerning an

alleged March 2008 murder at the ABC junkyard.”            The court

declined to order the defense to do so, stating that the murder

simply had not come up in Deguair’s testimony.

       Also on cross-examination, the following exchange took

place between the State and Deguair:

            Q [by the State]: Now, you had met David Teo before this
            April 3, 2008 robbery; right?
            A: A few times, yes.
            Q: And you told us that when you were living at the Royal
            Gardens in Waikiki, he came over; right?
            A: That’s one of the times he came over, yeah.
            Q: And isn’t it true that before the April 3, 2008
            robbery, you took David Teo to the Koko Head range to shoot
            guns?
            [Deguair’s counsel]: Objection.
            [The State]: 702-231(2).
            The Court: Sustained.
            [Deguair’s counsel]: That’s fine.


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       When court adjourned for the day, Deguair’s counsel made an

oral motion for mistrial due to the Koko Head shooting range

question.    He argued he had no notice of that bad act evidence,

and the parties had agreed to approach the bench and give the

court an opportunity to rule on whether such evidence could be

elicited.    The State counter-argued that the jury should hear

the evidence to determine if Deguair had “recklessly place[d]

himself in a situation whereby this alleged coercion can be

exerted upon him,” which renders the duress defense unavailable.

The State also argued that it had been trying to establish a

relationship between Teo and Deguair before the robbery.

       The circuit court considered the question to be “an ambush”

and stated that it was “shocked” when the State asked the

question, as it seemed to have come “out of left field.”             It

also considered the evidence to be “completely irrelevant” as

well as “prejudicial.”      The circuit court decided not to declare

a mistrial, as that would be “way too drastic a remedy to

correct this.”     While the circuit court believed he had stricken

the answer from the record, defense counsel pointed out that

there was no answer because the circuit court had sustained the

defense’s objection.      The circuit court then stated that the

question was “no harm, no foul.”          The circuit court proposed

striking the question and telling the jury to disregard it, but

defense counsel did not ask the circuit court to do that.

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       Relevant to this exchange, the circuit court had instructed

the jury at the start of trial as follows:

             If I sustain an objection to a question, for example, a
             witness is testifying, one of the attorneys is examining
             that witness and the attorney asks a question, the other
             attorney jumps up and objects, if I sustain the objection,
             it means I’m not going to allow the witness to answer the
             question. If something like that happens, don’t speculate
             what the answer might have been. Don’t speculate about the
             question. Don’t speculate about my ruling. An unanswered
             question is just that. It’s an unanswered question. It’s
             not evidence of any kind.

       Deguair’s redirect testimony commenced the following day.

Deguair again testified that he participated in the Aiea Cue

robbery because he was afraid of Teo.          He believed Teo could

have killed him if Teo smashed his head into a windshield.                The

defense then rested.

       5.   The State’s Rebuttal Evidence

       The State put on rebuttal evidence by Teo and Woo that

Deguair was not coerced into participating in the crime.             Teo

denied ever smashing a man’s face into a car windshield.             He

also denied slamming Deguair against the side of the SUV and

squeezing his neck.      He denied reminding Deguair of how he

smashed a man’s face into a windshield, denied saying that he

“needed this take,” denied forcing Deguair into the SUV, denied

asking Deguair to buy a torch kit and gas, and denied forcing

Deguair out of the SUV at the Aiea Cue and telling him, “[P]unk,

no make me get out and get you.”




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       On rebuttal, Woo testified that when Deguair visited the

junkyard ostensibly to discuss motorcycle mirrors, it was

Deguair who said, “I’m not here about the mirrors.”            Woo denied

asking Deguair to redirect the Aiea Cue videocameras, denied

telling Deguair, “Come on, you got to do this for us,” and

denied that Deguair stated that he did not want to participate

in the robbery.     He also testified that he did not see Teo slam

Deguair against the side of the SUV or choke him.            Woo testified

that Teo did not force or threaten Deguair to go into or out of

the SUV.     After rebuttal, the State rested.

       6.   Merger Sidebar

       The jury was given a set of interrogatories asking whether

the robbery and each of the kidnappings were committed through a

continuous course of conduct and with no separate and distinct

intent, mirroring the language of HRS § 701-109(1)(e), the

statute at issue in this case.        While the jury was deliberating,

the circuit court asked for counsels’ thoughts on what the

circuit court should do in the event that the jury answered

interrogatories in a manner that would result in the merger of

the robbery and kidnapping convictions.          The circuit court

stated its inclination to merge the offenses by dismissing

whichever conviction was a lesser grade felony.            In the event

all of the felony convictions were of the same grade, however,

the circuit court stated it would invite counsels’ input.                The

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State also agreed that that situation would require some thought

and possible briefing.         The circuit court then indicated that if

all the convictions were of the same grade, it would dismiss the

kidnapping convictions and find Deguair guilty of robbery only.

The circuit court then stated that further briefing was not

necessary at that time.

          7. Verdict and Merger

          The jury found Deguair guilty of robbery in Count 1 as a

class B felony,9 kidnapping in Count 2 as a class A felony, and

kidnapping in Counts 3, 4, and 5 as class B felonies.                The jury

also found that Counts 1 and 2, Counts 1 and 3, Counts 1 and 4,

and Counts 1 and 5 were “part of a continuing and uninterrupted

course of conduct” and were committed “with one intention, one

general impulse, and one plan encompassing both offenses,” for

purposes of the merger subsection of HRS § 701-109, subsection

(1)(e).       As a result, the circuit court dismissed Count 1

(robbery), consistent with its earlier decision that a class B

robbery conviction had to merge into a higher class A kidnapping

conviction.




9
      The jury found Deguair guilty of robbery in the second (not first)
degree. HRS § 708-841 (2014) states, as it did at the time of the alleged
offense, “A person commits the offense of robbery in the second degree if, in
the course of committing theft . . . [t]he person threatens the imminent use
of force against the person or anyone who is present with intent to compel
acquiescence to the taking of or escaping with the property[.]”


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       8. Sentence

       The circuit court sentenced Deguair to 20 years’

incarceration on Count 2 (class A kidnapping), and 10 years’

incarceration each on Counts 3, 4, and 5 (class B kidnappings),

with credit for time served, and with the sentences to run

concurrently.      Deguair timely appealed.

D.    ICA Appeal

       On appeal, Deguair argued that the circuit court erred in

convicting him of kidnapping as a class A felony on Count 2, as

he was entitled to the mitigating defense (that he voluntarily

released the victim, alive and not suffering from serious or

substantial bodily injury, in a safe place prior to trial),

which would have reduced the kidnapping to a class B felony.               A

majority of the ICA agreed.       Deguair, mem. op. at 3.        The ICA

therefore vacated Deguair’s conviction and sentence on Count 2

and “remand[ed] the case for entry of a judgment of conviction

on Count 2 as a class B felony and for resentencing on Count 2.”

Id.

       The ICA, however, rejected Deguair’s argument that the

kidnapping convictions should have merged into the robbery

conviction.    It held, “Where the jury returns a verdict of

guilty on two counts that merge, the State is given the option

to decide which of counts subject to merger should be

dismissed.”    Id. at 10.    The ICA cited State v. Padilla, 114

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Hawaii 507, 517, 164 P.3d 765, 775 (App. 2007), for this

proposition.    The ICA stated that the “State did not oppose the

Circuit Court’s decision to merge the robbery count into the

separate kidnapping counts,” and that, on appeal, “[t]he State

does not argue that it would have objected to the Circuit

Court’s merger decision if the mitigating defense had been

applied to Count 2.”      Deguair, mem. op. at 10 & 10 n.4.

Further, the ICA rejected Deguair’s argument that all of the

kidnapping convictions should have merged together, stating that

he provided no authority for that proposition, and that each

kidnapping count in Deguair’s case “required proof of a separate

and distinct intent with respect to each victim that were not

subject to merger,” citing State v. Correa, 5 Haw. App. 644, 706

P.2d 1321 (1985)).     Deguair, mem. op. at 10.

       The ICA also rejected Deguair’s argument that the circuit

court erred in excluding prior bad act evidence concerning Woo

and Teo for three reasons.       Id. at 14.     First, defense counsel’s

notice was untimely; second, the admission of the bad act

evidence would have created a danger of unfair prejudice and

confusion of the issues and prolonged the trial; and third, the

circuit court allowed Deguair to present other evidence that

supported his duress and choice of evils defenses.            Id.

       Lastly, the ICA rejected Deguair’s argument that the

circuit court erred in failing to declare a mistrial following

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the State’s question about shooting guns at the Koko Head range.

The ICA stated that it “need not resolve whether the State’s

question was improper,” as the circuit court sustained defense

counsel’s objection to the question before Deguair gave an

answer, defense counsel declined to have the circuit court

strike the question, and the circuit court instructed the jury

that an unanswered question was not evidence.           Id. at 15.       The

ICA also considered the question to be “brief and isolated.”

Id.    Finding no other errors by the circuit court, the ICA

affirmed the circuit court’s judgment of conviction and sentence

as to Counts 3, 4, and 5.

                       III.    Standards of Review

A.    Motion in Limine: Prior Bad Act Evidence

       “Prior bad act” evidence under Hawaii Rules of Evidence

(HRE) Rule 404(b) (1993) is admissible when “it is 1) relevant

and 2) more probative than prejudicial.”          State v. Maelega, 80

Hawaii 172, 183, 907 P.2d 758, 769 (1995) (citations omitted).

A trial court’s determination that evidence is “relevant” within

the meaning of HRE Rule 401 (1993) is reviewed under the

right/wrong standard of review.        State v. Pulse, 83 Hawaii 229,

247, 925 P.2d 797, 815 (1996).        However, a trial court's

balancing of the probative value of prior bad act evidence

against the prejudicial effect of such evidence under HRE Rule


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403 (1993) is reviewed for abuse of discretion.            See id.   An

abuse of discretion occurs when the court “clearly exceeds the

bounds of reason or disregards rules or principles of law or

practice to the substantial detriment of a party litigant.”

State v. Furutani, 76 Hawaii 172, 179, 873 P.2d 51, 58 (1994)

(citations omitted).

B.   Motion for Mistrial

       The denial of a motion for mistrial is within the sound

discretion of the trial court and will not be upset absent a

clear abuse of discretion.       See State v. Loa, 83 Hawaii 335,

349, 926 P.2d 1258, 1272 (1996) (citations omitted).             The trial

court abuses its discretion when it clearly exceeds the bounds

of reason or disregards rules or principles of law or practice

to the substantial detriment of a party litigant.            State v.

Ganal, 81 Hawaii 358, 373, 917 P.2d 370, 385 (1996) (citation

and internal quotation marks omitted)).

C.   Interpretation of HRS § 701-109(1)(e)

       “[T]he interpretation of a statute is a question of law

reviewable de novo.”      State v. Tauilili, 96 Hawaii 195, 197, 29

P.3d 914, 916 (2001) (citations omitted).




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                              IV.   Discussion

A.   Motion in Limine: Prior Bad Act Evidence

       We first address whether the ICA erred in concluding that

the circuit court did not abuse its discretion in excluding

prior bad act evidence concerning Woo and Teo.           On certiorari,

Deguair argues that (1) two-week notice of the defense’s

intention to use Woo’s and Teo’s prior bad acts was sufficient

time for the State to investigate and discuss the allegations

with Woo and Teo; and (2) the full range of prior bad acts was

necessary to show that the single incident allowed by the trial

court (Teo’s smashing a man’s head into a windshield) was not an

isolated incident and explained why Deguair took Teo seriously

when he said, “Punk, I need this take.”

       We need not decide whether the defense provided reasonable

notice to the State of the prior bad acts.          The circuit court

did not abuse its discretion in excluding the evidence.             HRE

Rule 404(b) provides that

            [e]vidence of other crimes, wrongs, or acts is not
            admissible to prove the character of a person in order to
            show action in conformity therewith. It may, however, be
            admissible where such evidence is probative of another fact
            that is of consequence to the determination of the action,
            such as proof of motive, opportunity, intent, preparation,
            plan, knowledge, identity, modus operandi, or absence of
            mistake or accident. In criminal cases, the proponent of
            evidence to be offered under this subsection shall provide
            reasonable notice in advance of trial, or during trial if
            the court excuses pretrial notice on good cause shown, of
            the date, location, and general nature of any such evidence
            it intends to introduce at trial.




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“The list of permissible purposes in Rule 404(b) is not intended

to be exhaustive ‘for the range of relevancy outside the ban is

almost infinite.’”       State v. Clark, 83 Hawaii 289, 300, 926 P.2d

194, 205 (1996) (citation omitted).          HRE Rule 403 provides,

however, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

       In this case, the circuit court did not allow Deguair to

present the following evidence:

            1. David Teo is/was known as a strong arm and debt
            collector for Oahu crime organizations.

            2. David Teo participated in the “taxing” of legal and
            illegal gambling businesses for protection of their
            businesses.

            . . . .

            4. David Teo told Defendant Patrick Deguair, Jr. that he
            (David Teo) had just gotten out of jail and “needed this
            take.”

            . . . .

            6. Ju Young Woo protected criminal organizations operating
            in the Pearl City and Aiea Communities.

            7. Ju Young Woo received and sold stolen motor vehicle
            parts.

            8.   Ju Young Woo collected money for drug dealers.

            9. Ju Young Woo beat several people with a metal pipe on
            the bike path near the ABC Used Auto Parts.

            10. Aiea Cue was not paying its “tax” for protection to
            “the Samoans.”




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            11. Ju Young Woo needed money to pay a lawyer for
            representation concerning an arrest for stealing a tractor.

In this case, Deguair’s argument for admitting this evidence was

that it was relevant to his duress and choice of evils defenses.

At trial, Deguair’s defense was that Teo in particular (not Woo)

coerced him into participating in the Aiea Cue robbery.

Therefore, items 6, 7, 8, 9, and 11 of the State’s Motion in

Limine No. 2, which all concern Woo, were not relevant to

Deguair’s defense and were, therefore, properly excluded.                It

should be noted that the circuit court did allow Deguair to

present evidence that he saw Woo murder a man, but Deguair chose

not to present that evidence.        Deguair’s abandonment of that

evidence further reinforces his focus on Teo, not Woo.

       The remaining items related to Teo in the State’s Motion in

Limine No. 2 are items 1, 2, 4, and 10. (Item 10 stated that

Aiea Cue had not been paying its protection money to the

Samoans; it can be inferred that Teo, not Woo, would be the one

concerned with collecting protection money, per item 2).

Despite the preclusion of item 4, Deguair did manage to testify

at trial that Teo told him, “Punk, I need this take,” although

he did not testify that Teo had just gotten out of jail.             In

short, the remaining precluded evidence at issue on certiorari

was that Teo was a strong-arm debt collector for crime

organizations, that he collected protection money from legal and

illegal businesses, that Aiea Cue was not paying its protection

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money, and that Teo had just gotten out of jail.            Although each

of these items could be probative of why Teo might have

participated in robbing Aiea Cue, it is less probative of why

Teo would force Deguair to participate.          This evidence was too

attenuated from the duress issue, unlike the evidence that Teo

smashed a man’s face into a windshield, then reminded Deguair of

that incident in order to secure Deguair’s participation in the

robbery -- evidence that the circuit court allowed.            In short,

the circuit court did not abuse its discretion in precluding the

evidence after weighing its probative value versus the danger of

confusing the issues and misleading the jury.

B.   Motion for Mistrial

       We next address whether the ICA erred in concluding that

the circuit court did not abuse its discretion in declining to

declare a mistrial, after the prosecutor asked Deguair about

shooting guns at Koko Head range.         When prosecutorial misconduct

is the basis for a motion for mistrial, a new trial is warranted

only where “the actions of the prosecutor have caused prejudice

to the defendant’s right to a fair trial.” State v. Kupihea, 80

Hawaii 307, 316, 909 P.2d 1122, 1131 (1996) (citation omitted).

“In order to determine whether the alleged prosecutorial

misconduct reached the level of reversible error, [the reviewing

court] consider[s] the nature of the alleged misconduct, the

promptness or lack of a curative instruction, and the strength

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or weakness of the evidence against [the] defendant.”             Id.

(citations omitted).

       Deguair argues that the nature of the alleged misconduct

was “egregious”:

            None of the witnesses testified that they saw any firearms
            or that anyone threatened to use a firearm. The mere
            mention of it by the prosecutor would serve no other
            purpose but to inflame the jury and prejudice them into
            believing that Deguair was a hard-core criminal ready and
            willing to use a gun.

With regard to the strength or weakness of the evidence, Deguair

argues that the evidence against him was not strong because Woo

and Teo were really the masterminds behind the robbery.             As to

the “promptness or lack of a curative instruction,” Deguair

acknowledges that the circuit court sustained the objection, and

that defense counsel did not take the circuit court up on its

offer to strike the question, but argues that the two other

factors “should weigh in favor of a new trial.”

       With respect to the first factor, we disagree with Deguair

that the prosecutor’s question was egregiously improper.             There

is merit to the State’s argument that it was trying to establish

that a relationship existed between Teo and Deguair before the

robbery that would have tended to negate the defense of duress.

We agree with defense counsel and the circuit court, however,

that the intention to offer this evidence should have been

previously disclosed.      We also agree with the circuit court that




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declaring a mistrial in these circumstances would have been “way

too drastic a remedy.”

       With respect to the second factor, the circuit court

sustained defense counsel’s objection to the question about

shooting guns at Koko Head range prior to a response being

given, had offered to strike the question (and defense counsel

did not take the circuit court up on its offer), and had already

previously instructed the jury as follows

           If I sustain an objection to a question, for example, a
           witness is testifying, one of the attorneys is examining
           that witness and the attorney asks a question, the other
           attorney jumps up and objects, if I sustain the objection,
           it means I’m not going to allow the witness to answer the
           question. If something like that happens, don’t speculate
           what the answer might have been. Don’t speculate about the
           question. Don’t speculate about my ruling. An unanswered
           question is just that. It’s an unanswered question. It’s
           not evidence of any kind.

The jury is presumed to have followed the court’s instructions.

See State v. Knight, 80 Hawaii 318, 327, 909 P.2d 1133, 1142

(1996) (“[A]s a rule, juries are presumed to . . . follow all of

the trial court’s instructions.”) (citation omitted).

       Finally, Deguair argues that the evidence against him was

not strong.    The undisputed testimony showed that Deguair

participated in the robbery and kidnappings, and that the three

intruders were working together.          There was contradictory

testimony regarding Deguair’s defenses of duress and choice of

evils from his accomplices.       Deguair’s former co-defendants Woo

and Teo testified that Deguair masterminded the Aiea Cue


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robbery, whereas Deguair testified that he was forced to

participate.     Although “a case of guilt is never ‘strong’ if

evidence essential to conviction is the testimony of an alleged

accomplice whose credibility the defendant subjects to severe

attack,”     State v. Pokini, 55 Haw. 640, 645, 526 P.2d 94, 102

(1974), the undisputed testimony contradicted Deguair’s duress

and choice of evils defenses.

       Under these circumstances, we believe that the prosecutor’s

question did not cause prejudice to Deguair’s right to a fair

trial.      Therefore, we agree with the ICA that the circuit court

did not abuse its discretion in declining to declare a mistrial.

       A.   Merger

       Lastly, we address whether the ICA erred in remanding this

case to the circuit court solely for resentencing on Count 2

(kidnapping) as a class B felony.          Before this court, Deguair

argues that the kidnapping convictions should merge into the

robbery conviction.       HRS § 701-109(1)(e) provides the following:

             (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: . . .
             (e) The offense is defined as a continuing course of
             conduct and the defendant’s course of conduct was
             uninterrupted, unless the law provides that specific
             periods of conduct constitute separate offenses.

HRS § 701-109 “interposes a constraint on multiple convictions

arising from the same criminal conduct.”           State v. Matias, 102

Hawaii 300, 305, 75 P.3d 1191, 1196 (2003).           The commentary to
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HRS § 701-109 states that the statute “reflects a policy to

limit the possibility of multiple convictions and extended

sentences when the defendant has basically engaged in only one

course of criminal conduct directed at one criminal goal, or

when it would otherwise be unjust to convict the defendant for

more than one offense.”      The “one course of criminal conduct

directed at one criminal goal” in this case was the robbery of

the Aiea Cue.    The jury found that each kidnapping was committed

as a continuing course of conduct, with no separate and distinct

intent from the robbery.       The kidnappings of Beltran, Llacuna,

Lemons, and Moliga were committed solely in furtherance of the

robbery.   Therefore, we agree with Deguair that the kidnapping

convictions should merge into the robbery conviction.

       The State maintains that under Padilla, it is the State’s

prerogative to elect whether the kidnapping convictions should

merge into the robbery conviction or vice versa.            The State

therefore endorses the ICA’s conclusion in its memorandum

opinion in this case that Padilla, 114 Hawaii 507, 164 P.3d 765,

allows the prosecution to determine how criminal convictions

should merge.    Deguair, mem. op. at 10.        Padilla is

distinguishable.     In Padilla, the circuit court plainly erred by

failing to give a merger instruction in the first place.

Padilla, 114 Hawaii at 517, 164 P.3d at 775.          The usual remedy

in that instance is a retrial.        Id.   On appeal, however, the

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prosecution suggested dismissing one of the defendant’s

convictions to remedy the defect, rather than face wholesale

retrial.   Id.   The ICA in Padilla agreed with the prosecution’s

suggested remedy.     Id.   Padilla, therefore, does not stand for

the blanket proposition that the prosecution determines how

multiple convictions of the same class merge.

       We further note that the ICA observed that “[t]he State

does not argue on appeal that it would have objected to the

Circuit Court’s merger decision [i.e., the merger of the robbery

conviction into the kidnapping convictions] if the mitigating

defense had been applied to Count 2.”         Deguair, mem. op. at 10

n.4.    Actually, the State made no election on appeal in this

case.   Further, at trial, the State expressed its desire to

brief the merger issue in the event all of the convictions were

of the same class.     While the jury was deliberating, the circuit

court asked for counsels’ thoughts on what the circuit court

should do in the event that the robbery and kidnapping

convictions merged and all were of the same class.            The circuit

court stated its inclination to convict Deguair of robbery and

dismiss all of the kidnapping convictions, if all the

convictions were class B felonies.         The State asked for an

opportunity to brief how merger would operate under those

circumstances, and the defense stated it had no objection to

further briefing.     The circuit court also decided that if one of

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the kidnapping convictions came back as a class A felony, and

the rest of the convictions came back as class B felonies, the

circuit court was required to merge the robbery conviction into

the kidnapping convictions.        The jury returned precisely that

combination of convictions, so there was no further opportunity

to discuss how merger would operate where all of the convictions

were of the same class.

       The ICA also held that each kidnapping conviction must

stand because “the kidnapping counts charged in this case

required proof of a separate and distinct intent with respect to

each victim and were not subject to merger.”            Deguair, mem. op.

at 10.    For this proposition, the ICA cited to Correa, 5 Haw.

App. 644, 706 P.2d 1321.        Correa, however, does not apply.          At

issue in Correa was whether kidnapping was a lesser included

offense of robbery under HRS § 701-109(1)(a), not whether

kidnapping and robbery should merge as part of a continuing

course of conduct under HRS § 701-109(1)(e).            Further, in this

case, the question is not whether each kidnapping merged with

the other kidnappings, but whether each kidnapping merged into

the single robbery offense.        Therefore, Correa does not, as a

matter of law, foreclose the possibility that the kidnapping

convictions could be dismissed upon merger into the robbery

conviction.     Indeed, the jury’s answers to interrogatories

indicated that the jury found that each kidnapping was part of a

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continuous course of conduct, and committed with no separate and

distinct intent from the single robbery.

       Therefore, the ICA erred in remanding this case to the

circuit court solely for resentencing on Count 2 (kidnapping as

a class B felony), foreclosing the possibility that the

kidnapping convictions could merge into the robbery conviction.

We hold that, under HRS § 701-109(1)(e), Deguair committed the

kidnappings as part of a continuous course of conduct in

committing the robbery; therefore, the kidnapping convictions

merge into the robbery conviction.

                              V.   Conclusion

       The ICA did not err in concluding that the circuit court

did not abuse its discretion in excluding the prior bad act

evidence concerning Teo and Woo.          The ICA also did not err in

concluding that the circuit court did not abuse its discretion

in declining to declare a mistrial.         The ICA did err, however,

in remanding this case for resentencing solely on the Count 2

kidnapping conviction, as the kidnapping convictions merged into

the robbery conviction.      Accordingly, we vacate the ICA’s April

21, 2015 Judgment on Appeal, and the circuit court’s January 2,

2013 Judgment of Conviction and Sentence.          We remand this case

to the circuit court and direct it to reinstate Deguair’s

conviction on Count 1, to dismiss the convictions on Counts 2,

3, 4, and 5, and to resentence Deguair on Count 1 only, pursuant

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to HRS § 701-109(1)(e), based on the merger of Counts 2 through

5 into Count 1.

Dwight C.H. Lum                   /s/ Mark E. Recktenwald
for petitioner
                                  /s/ Paula A. Nakayama
James M. Anderson
for respondent                    /s/ Sabrina S. McKenna

                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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