State v. Pasion, 152 Haw. 24

Background

Defendant Concepcion Pasion was convicted after a jury trial of violating an Order for Protection (HRS § 586-11(a)) based on an August 27, 2018 incident; she was sentenced to two years probation and 30 days imprisonment.
The prosecution also introduced evidence of a prior April 2018 conviction for violating the same Order for Protection; Officer Maiava testified about that incident and that he had "dealt with" Pasion several times.
Pasion did not dispute going to the protected person’s residence or that the Order barred her presence; she asserted a choice-of-evils defense (justification).
At trial the Family Court instructed the jury using a general element requiring proof that Pasion "engaged in conduct prohibited by the order" without specifying the particular prohibited act.
The Family Court admitted the prior conviction under HRE Rule 404(b) and gave a limiting instruction; it declined to find the prior-act evidence unduly prejudicial under HRE Rule 403.
On appeal the ICA (Leonard, presiding) found the instruction defective but harmless, held Pasion is entitled to a bifurcated sentencing proceeding/jury determination of enhanced-sentencing facts under Auld and related authorities, and determined the admission of the prior-act evidence was an abuse of discretion that was not harmless; the judgment was vacated and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether the elements instruction was impermissibly vague by failing to specify the prohibited conduct	Instruction adequately stated statutory elements	Instruction was vague/circular because it did not identify the specific act prohibited by the Order	Court: Instruction was plain error (failed to specify the particular prohibited conduct) but error was harmless beyond a reasonable doubt
2. Whether enhanced sentencing under HRS § 586-11(a)(2)(A) must be proved to a jury / whether court must colloquy a stipulation to prior conviction	State conceded a bifurcated jury determination is required for the enhanced sentencing facts	Enhanced sentencing facts are elements that must be proven beyond a reasonable doubt; if defendant stipulates, court must colloquy under Murray	Court: Vacate sentence; grant bifurcated sentencing proceeding (jury to decide enhancement). If defendant stipulates to prior conviction, the court must conduct an on-the-record colloquy per Murray
3. Whether admitting prior April 2018 violation and officer testimony under HRE 404(b)/403 was an abuse of discretion	Prior act probative to negate mistake/accident and show knowledge/intent; limiting instruction safeguards use	Prior-act evidence was propensity evidence, minimally necessary, and unduly prejudicial	Court: Abuse of discretion to admit prior conviction and officer’s testimony about prior dealings; probative value did not outweigh unfair prejudice and error was not harmless; requires remand

Key Cases Cited

State v. Auld, 361 P.3d 471 (Haw. 2015) (enhanced-sentencing facts may require jury determination; governs bifurcated procedure)
State v. Wagner, 394 P.3d 705 (Haw. 2017) (addresses limits on admitting prior convictions and jury prejudice concerns)
State v. Murray, 169 P.3d 955 (Haw. 2007) (trial court must colloquy defendant who stipulates to prior convictions to ensure knowing, voluntary waiver of jury proof)
State v. Gallagher, 463 P.3d 1119 (Haw. 2020) (framework for weighing probative value vs. unfair prejudice of prior-bad-act evidence)
State v. DeLeon, 319 P.3d 382 (Haw. 2014) (plain-error review for instructional error)
State v. Feliciano, 489 P.3d 1277 (Haw. 2021) (reminds trial courts to balance 404(b) probative purposes against Rule 403 prejudice)
State v. Bovee, 394 P.3d 760 (Haw. 2017) (discusses adequacy of jury instructions and what the jury must decide)