STATE of Hawaiʻi, Petitioner-Appellee, v. Willie JONES, also known as “Willis,” Respondent-Appellant.
No. 20543.
Supreme Court of Hawaiʻi.
July 19, 2001.
As Amended Aug. 30, 2001.
29 P.3d 351 | 161
Edwin Lauder Baker, Honolulu, for respondent-appellant.
MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and Circuit Judge BLONDIN, in Place of ACOBA, J., Recused.
Opinion of the Court by MOON, C.J.
On September 4, 1996, following a circuit court jury trial, respondent-appellant Willie Jones (Defendant) was convicted of: (1) one count of sexual assault in the second degree, in violation of Hawaiʻi Revised Statutes (HRS)
We granted petitioner-appellee State of Hawaiʻi‘s (the prosecution) application for a writ of certiorari to review the decision of the ICA. We agree with the ICA that the trial court reversibly erred in instructing the jury. However, in light of our decision in State v. Klinge, 92 Hawaiʻi 577, 994 P.2d 509, reconsideration denied, 92 Hawaiʻi 577, 994 P.2d 509 (2000), and, because the ICA misapplied this court‘s holding in State v. Arceo, 84 Hawaiʻi 1, 928 P.2d 843 (1996), we write to clarify the ICA‘s analysis.
I. BACKGROUND
The background facts are set forth in detail in the ICA‘s opinion, see Jones, 97 Haw. at 24-25, 32 P.3d at 1098-99, which we will not repeat here. However, the relevant facts for purposes of our clarification of the ICA‘s analysis are briefly stated below and presented in more detail in the discussion section, infra.
In July 1994, Complainant, who was then fourteen-years-old, her family, and some of her friends developed a friendship with Defendant, who was then thirty-six-years old. During their friendship, Complainant and Defendant discussed Complainant‘s interest in modeling and how Defendant could help her begin a career.
Complainant testified that, during the course of an outing with Defendant to the beach, his hotel swimming pool, and his hotel room sometime in July or August 1994, Defendant: (1) touched her leg and her right breast, as well as exposed his genitals, while they were sitting in Defendant‘s car; (2) pulled Complainant‘s bathing suit to the side and “tr[ied] to stick his penis” into her vagina while swimming in the hotel pool; and (3) pulled down her sweat shorts and inserted his penis into her vagina three times while she was in the bathroom of Defendant‘s hotel room. Complainant also testified that, when Defendant made sexual advances toward her, she tried to avoid him or push him away.
Defendant was subsequently indicted on six counts of sexual assault for the following acts: Count I for sexual assault in the second degree (sexual penetration in the hotel room); Count II for attempted sexual assault in the second degree (attempted sexual penetration in the pool); Count III for sexual assault in the fourth degree (exposure of genitals in the car); Count IV for sexual assault in the fourth degree (placing hand on Complainant‘s breast in the car); Count V for sexual assault in the fourth degree (placing penis on Complainant‘s vagina in the hotel room); and Count VI for sexual assault in the fourth degree (placing hand on Complainant‘s vagina in the hotel room).4
During closing arguments, Defendant argued that Complainant had consented to his sexual advances. The prosecution, on the other hand, argued that the evidence showed Complainant‘s lack of consent and also focused on Complainant‘s youth, arguing that Defendant was a con artist who took advantage of a young girl.
At the settling of jury instructions, the parties agreed to the following consent instruction, which was given by the court:
In any prosecution, the complaining witness‘s consent to the conduct alleged or to the result thereof, is a defense if the con-sent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
Consent is not a defense if:
(1) It is given by a person who is legally incompetent to authorize the conduct alleged [hereinafter, Ground 1]; or
(2) It is given by a person who by reason of youth, mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged [hereinafter, Ground 2]; or
(3) It is given by a person whose consent is sought to be prevented by the law defining the offense [hereinafter, Ground 3]; or
(4) It is induced by force, duress, or deception [hereinafter, Ground 4].
The burden is upon the prosecution to prove beyond a reasonable doubt that the complaining witness did not consent to the conduct alleged or the result thereof. If the prosecution fails to meet its burden, then you must find the defendant not guilty.
After deliberations, the jury returned guilty verdicts as to Counts I through V, and Defendant timely appealed.
On appeal before the ICA, Defendant argued, inter alia, that his convictions and sentences should be reversed because: (1) the trial court committed plain error by including Grounds 1 and 3 in the consent instruction because there was no rational basis in the evidence to support such an instruction; (2) the trial court committed plain error by failing to provide the jury with a specific unanimity instruction with respect to Count I, advising the jury that all twelve of its members must agree that the same underlying culpable act had been proved beyond a reasonable doubt; and (3) Defendant was denied the effective assistance of counsel based on trial counsel‘s failure to ensure that the jury was properly instructed.
The ICA agreed that the trial court erroneously instructed the jury regarding consent with respect to Counts I through IV.5 Specifically, the ICA held that,
“[I]neffective consent” in a criminal case as set forth in Hawaiʻi Revised Statutes (HRS)
§ 702-235 (1993) is an attendant circumstance of the offense to which it is attributed and therefore a material element which must be proven beyond a reasonable doubt by the prosecution. We further hold that because there are four potential grounds upon which ineffective consent may be found, the jury must be informed that its decision must be unanimous as to at least one of these grounds before it may render a verdict of guilty on the offense involved. We also conclude that where the jury is instructed that a defendant‘s criminal liability may be based on the lack of consent of the complaining witness (the complainant) and is also in-structed on ineffective consent, the jury must be advised that these bases for criminal liability are mutually exclusive. Thus, the jurors must reach unanimity on one of them as the basis for criminal liability as to the offense concerned. Because the ineffective consent instruction of the first circuit court (the court) failed to inform the jury of the foregoing propositions, the instruction was prejudicially erroneous.
Jones, 97 Haw. at 24, 32 P.3d at 1098. Accordingly, the ICA vacated Defendant‘s convictions as to Counts I through IV and remanded the case for a new trial on those counts.
On November 17, 1998, we granted the prosecution‘s timely petition for a writ of certiorari, wherein the prosecution argues that the ICA erred in vacating Defendant‘s convictions. The prosecution concedes that the ineffective consent instruction was erroneously given because the instruction was inapplicable to the evidence adduced. However, the prosecution maintains that the in-clusion of the ineffective consent instruction did not contribute to the verdict because there was sufficient evidence that Complain-
II. STANDARDS OF REVIEW
A. Statutory Interpretation
“The interpretation of a statute is a question of law reviewable de novo.” State v. Klinge, 92 Hawaiʻi 577, 584, 994 P.2d 509, 516 (2000) (quoting State v. Kotis, 91 Hawaiʻi 319, 327, 984 P.2d 78, 86 (1999) (citations omitted)), reconsideration denied, 92 Hawaiʻi 577, 994 P.2d 509 (2000).
B. Jury Instructions
In the instant case, Defendant‘s trial counsel agreed to the jury instructions as given and, thus, invited the error of which Defendant now complains. The ICA, stating that, ultimately, the trial court is responsible for properly instructing the jury, concluded that the erroneous instructions prejudiced Defendant and amounted to plain error by the trial court. Jones, 97 Haw. at 30, 32 P.3d at 1104 (citing State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980)). An error is deemed plain error if the substantial rights of the defendant have been affected adversely. See State v. Vanstory, 91 Hawaiʻi 33, 42, 979 P.2d 1059, 1068 (1999).
We acknowledge that, generally, invited errors are not reversible. See State v. Puaoi, 78 Hawaiʻi 185, 189, 891 P.2d 272, 275 (1995). However, on appeal before the ICA, Defendant argued that he was denied effective assistance of counsel based on, inter alia, defense counsel‘s failure to ensure that the jury was properly instructed. Specifically, Defendant contends that the ineffective consent instruction agreed to by trial counsel was not supported by the evidence adduced and that this error prejudiced Defendant.
When an ineffective assistance of counsel claim is raised, the defendant has the burden of establishing: “1) that there were specific errors or omissions reflecting counsel‘s lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.” State v. Fukusaku, 85 Hawaiʻi 462, 479-80, 946 P.2d 32, 49-50 (1997) (citations omitted).
Whether we review the jury instructions in this case for plain error by the trial court or as an ineffective assistance of counsel claim, the ultimate question is whether the erroneous instructions prejudiced Defendant‘s rights. Here, the prosecution has conceded that the ineffective consent instruction was erroneously given.7 Indeed, “erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.” State v. Valentine, 93 Hawaiʻi 199, 204, 998 P.2d 479, 484 (2000) (citations omitted). However, the error
is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire pro-ceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to 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.
Id. (emphasis added) (citations omitted).
III. DISCUSSION
The key issue presented in this case is whether the consent instruction was prejudicially erroneous because: (1) the jury was instructed that it could find Defendant guilty based on either of two alternative theories of
The prosecution concedes that the trial court‘s instruction as to ineffective consent was erroneously given because there was insufficient evidence to support such an instruction, but maintains that the error was harmless. The prosecution argues that, inas-much as the ineffective consent instruction was clearly inapplicable and there was strong evidence that Complainant did not consent, the error did not contribute to the verdict. However, the prosecution also acknowledges and the record reflects that there was some evidence and argument to the jury support-ing some of the grounds of ineffective consent. Because it is possible that the jury incorrectly believed that it could convict Defendant based on a finding of ineffective consent, despite the lack of legally sufficient evidence, see discussion infra, we agree with the ICA that the consent instruction as given was prejudicially erroneous, affecting Defendant‘s substantial rights. However, we granted the prosecution‘s application for certiorari to clarify the ICA‘s analysis.
A. Counts I through IV
1. General Principles
such (1) conduct, (2) attendant circum-stances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the statute of limita-tions, lack of venue, or lack of jurisdiction).
(Emphases added.) Further,
Because “compulsion” is an element of each of the crimes charged in Counts I, II, and IV, the prosecution had the burden of proving that Defendant committed the culpable acts “by compulsion.”
With respect to Count III, the prosecution must prove that Defendant “knowingly expose[d][his] genitals to [Complainant] under circumstances in which [his] conduct [was] likely to alarm the [Complainant] or put the [Complainant] in fear of bodily injury [.]”
In any prosecution, the [victim‘s] consent to the conduct alleged, or to the result thereof, is a defense if the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
(Emphasis added.) Clearly, consent negatives the element that Defendant‘s “conduct [was] likely to alarm [Complainant] or put [her] in fear of bodily injury.” Id. Consent, therefore, is a defense to Count III, and, pursuant to
(1) It is given by a person who is legally incompetent to authorize the conduct alleged [Ground 1]; or
(2) It is given by a person who by reason of youth, mental disease, disorder, or defect, or intoxication is manifestly un-able or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged [Ground 2]; or
(3) It is given by a person whose improvi-dent consent is sought to be prevented by the law defining the offense [Ground 3]; or
(4) It is induced by force, duress or decep-tion [Ground 4].
The commentary to
Moreover, Hawaiʻi‘s case law recognizes that ineffective consent, if proven, also ren-ders consent meaningless where the absence of consent is an element of the crime speci-fied in the definition of the offense. See State v. Oshiro, 5 Haw.App. 404, 408, 696 P.2d 846, 850 (1985) (“[I]f consent as a de-fense is subject to the ten qualifications of
2. Jury Instructions
With respect to jury instructions, “[i]t is a grave error to submit a [criminal] case to a jury without accurately defining the offense charged and its elements. Accord-ingly, the jury may not be instructed in a manner that would relieve the prosecution of its burden of proving every element of the offense charged.” State v. Jenkins, 93 Hawaiʻi 87, 108, 997 P.2d 13, 34 (2000) (citations and footnote omitted). Further, “where ... the jury has been given instructions on a defense other than an affirmative defense,10 but has not been instructed that the prosecu-tion bears the burden of proof beyond a reasonable doubt with respect to negativing that defense, substantial rights of the defen-dant may be affected and plain error may be noticed.” Raines v. State, 79 Hawaiʻi 219, 225, 900 P.2d 1286, 1292 (1995); see also
In its application, the prosecution seems to argue that Defendant was not enti-tled to an instruction on the defense of con-sent. However,
[o]ur cases have firmly established that a defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be. State v. Sawyer, 88 Hawaiʻi 325, 333, 966 P.2d 637, 645 (1998)
B. The Right to a Unanimous Verdict
The prosecution contends that the ICA erred by holding that Defendant was denied his right to a unanimous verdict because the ICA misapplied this court‘s holding in Arceo.
“[T]he right of an accused to a unan-imous 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 Hawaiʻi Constitution11.” Arceo, 84 Hawaiʻi at 30, 928 P.2d at 872. 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 requi-site to each element. See id.;
1. State v. Arceo: Separate and Distinct Culpable Acts
In Arceo, evidence of multiple acts of sexu-al contact and sexual penetration was intro-duced to support each of two counts of sexual assault. 84 Hawaiʻi at 3, 928 P.2d at 845. This court 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 either the prosecution elects the specific conduct upon which it intends to rely to establish the conduct element of the offense or the trial court gives the jury a specific unanimity in-struction. Id. at 32-33, 928 P.2d at 874-75. The prosecution argues that the unanimity requirement articulated in Arceo does not apply to the instant case because the various grounds upon which the jury could have found a lack of consent, i.e., the absence of consent or one of the four grounds for find-ing ineffective consent, did not amount to separate and distinct culpable acts that could support separate counts of an indictment or complaint. We agree with the prosecution.
As this court recognized in Valentine,
[t]he Arceo decision dealt with a situation in which the prosecution had adduced evi-dence regarding independent incidents, during each of which the defendant en-gaged in conduct that could constitute the offense charged, and each of which could have been, but were not, charged as sepa-rate offenses. Inasmuch as these indepen-dent instances of culpable conduct were submitted to the jury in a single count that charged but one offense, we held that a specific unanimity instruction was neces-sary to ensure that each juror convicted the defendant on the basis of the same incident of culpable conduct.
Thus, two conditions must converge be-fore an Arceo unanimity instruction, absent an election by the prosecution, is neces-
93 Hawaiʻi at 208, 998 P.2d at 488 (emphases added) (citations omitted).
In the instant case, although the prosecu-tion adduced proof of two or more “separate and distinct culpable acts” or “independent incidents,” the prosecution correctly charged Defendant with separate counts of sexual assault with respect to each distinct culpable act or incident.12 Thus, the danger present in Arceo that the jury did not agree upon which independent incident constituted the charged offense was not presented by the consent instruction in this case. See Valentine, 93 Hawaiʻi at 208, 998 P.2d at 488 (“[T]here was no danger that the jury would be confused regarding the conduct of which [Defendant] was accused and that constituted the charged offense.“). Rather, the problem presented by the consent instruction in this case, discussed infra, was that the jury was presented with alternative means of estab-lishing a single element of each of the charged offenses, specifically, the lack of le-gal consent, where there was insufficient evi-dence to support one of those alternative means.
Other state courts have made a distinction between “alternative means” cases and “multiple acts” cases. The distinc-tion has been explained as follows:
In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimi-ty as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was commit-ted so long as substantial evidence sup-ports each alternative means.13 In review-ing an alternative means case, the court must determine whether a rational trier of fact could have found each means of com-mitting the crime proved beyond a reason-able doubt.
In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident con-stitutes the crime. To ensure jury una-nimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
State v. Timley, 255 Kan. 286, 875 P.2d 242, 246 (1994) (quoting State v. Kitchen, 110 Wash.2d 403, 756 P.2d 105, 109 (1988)) (cita-tions and quotation marks omitted). The foregoing distinction is consistent with Arceo, which relied heavily on federal law, as well as cases from Washington, Alaska, Colorado, and Tennessee, in holding that unanimity is required, absent an election by the prosecu-tion, as to each separate and distinct culpable act. Arceo, 84 Hawaiʻi at 32, 928 P.2d at 874 (“In our view, the logic of [State v.] Petrich, 101 Wash.2d 566, [683 P.2d 173, 177 (Wash. 1984), modified by Kitchen, 756 P.2d at 109-10], Covington [v. State], [703 P.2d 436, 440, aff‘d in part on reh‘g, State v. Covington, 711 P.2d 1183, 1185 (Alaska Ct.App.1985) (hold-ing that, although trial court erred by failing
Notes
Axley, 646 P.2d at 277. The version of Arizona‘s first degree murder statute at issue in Axley, codified at Ariz. Rev. Stat. 13-1105, was actually an amended version of the statute at issue in Schad. Under both versions, however, premeditated murder and murder committed in the course of a robbery constitute first degree murder. The version of the statute at issue in Schad read as follows:[Ariz.Rev.Stat. §] 13-1105 provides that the crime of first degree murder can be committed in either of two ways. First, an individual commits first degree murder if he causes the death of another with premeditation, intending or knowing that his conduct will cause death. Second, under the doctrine of felony-murder, a person commits first degree murder if “(a)cting either alone or with one or more other persons such person commits or at-tempts to commit ... robbery ... and in the course of and in furtherance of such offense or immediate flight from such offense, such per-son or another person causes the death of any person.” [Ariz. Rev. Stat. §] 13-1105(A)(2). Although the first count of the indictment set forth the two bases delineated in [Ariz.Rev. Stat. §] 13-1105 for classifying appellant‘s actions as first degree murder, it charged him with only one crime. Thus, the indictment was not duplicitous.
Ariz.Rev.Stat. § 13-452 (Supp.1973).A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated kill-ing, or which is committed in avoiding or preventing lawful arrest or affecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or may-hem, or sexual molestation of a child under the age of thirteen years, is murder in the first degree. All other kinds of murder are of the second degree.
In my view, the foregoing were not intended by the legislature to be alternative means of proving first degree murder. Indeed, they have never been treated as such in this jurisdiction, and the requisite mental state for each of the foregoing offenses differs. Nevertheless, with the possible exception of subsection (1)(a), application of the Schad “test“—to use the majority‘s word—would lead to such a result. As the Schad court noted, there is “substantial historical and contemporary(1) A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of:
(a) More than one person in the same or separate incident;
(b) A peace officer, judge, or prosecutor arising out of the performance of official duties;
(c) A person known by the defendant to be a witness in a criminal prosecution;
(d) A person by a hired killer, in which event both the person hired and the person respon-sible for hiring the killer shall be punished under this section; or
(e) A person while the defendant was impris-oned.
We agree with the foregoing dis-tinction and emphasize that “separate and distinct culpable acts,” or “independent inci-dents,” each of which could support a sepa-rate count of an indictment or complaint, may not be treated as “alternative means” of proving the conduct element of an of-fense.14 Each “separate and distinct culpa-ble act” or “independent incident” that may be charged as a separate count includes the conduct, attendant circumstances, and result of conduct that may be present.
To illustrate the conceptual difference be-tween separate and distinct culpable acts or independent incidents and the conduct ele-ment, consider the following example. A defendant is charged with committing the offense of simple trespass upon two different properties on the same day.
legal concept of “alternative means” is distinct from the term “multiple acts,” which refers to “separate and distinct culpable acts” as dis-cussed in Arceo, 84 Hawaiʻi at 32-33, 928 P.2d at 874-75.
Because the prosecution correctly charged Defendant with separate counts of sexual assault with respect to each distinct culpable act or incident, the danger present in Arceo—that the jury did not agree upon which independent incident constituted the charged offense—was not presented by the consent instruction in this case. Having determined that Arceo does not apply to the facts of this case, we now examine this court‘s recent decision in Klinge, which recognized that unanimity may not be required where the jury is presented with alternative means of establishing a single element of the offense charged. 92 Hawaiʻi at 589, 994 P.2d at 521.
2. State v. Klinge: Alternative Means
In Klinge, the defendant (Klinge) was con-victed of terroristic threatening in the first degree. 92 Hawaiʻi at 579, 994 P.2d at 511.
(1) With the intent to terrorize, or in reckless disregard of the risk of ter-rorizing, another person; or
(2) With intent to cause, or in reckless disregard of the risk of causing evacu-ation of a building, place of assembly, or facility of public transportation.
On appeal, Klinge argued that his constitu-tional right to a unanimous verdict was vio-lated because the two alternative mental states upon which the jury could have con-victed him of terroristic threatening gave rise to separate crimes and the trial court erred in failing to issue an instruction guaranteeing unanimity as to either “intent.” Id. at 579-80, 994 P.2d at 511-12. Rejecting Klinge‘s contentions, this court held that
HRS § 707-715 defines a single criminal offense....HRS §§ 707-715(1) and(2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening—either one giving rise to the same criminal culpability. Accordingly, the trial court in [Klinge] did not err in its instruction to the jury.
Id. at 589, 994 P.2d at 521 (emphasis omit-ted). In Klinge, the determination whether unanimity was required focused on whether the two alternative mental states, provided in the statute, defined separate crimes requir-ing individual proof of each offense16 or
other hand, believed that these statutory alterna-tives were aimed at prohibiting different results and that the language of the statute evinced a legislative intent to define separate offenses. Id. at 597-600, 994 P.2d at 529-32 (Ramil, J., dis-senting, joined by Levinson, J.).
The discussion in Klinge makes clear that the determination whether it is rational and fair to treat statutory alterna-tives as “alternative means” must be made on a case-by-case basis.18 In making such
on the means by which an element has been proven. See United States v. Powell, 226 F.3d 1181, 1196 (10th Cir.2000) (citing Richardson v. United States, 526 U.S. 813, 817, [119 S.Ct. 1707, 143 L.Ed.2d 985] (1999) (citing Johnson v. Loui-siana, 406 U.S. 356, 369-71, [92 S.Ct. 1620, 32 L.Ed.2d 152] (1972) (Powell, J., concurring); Schad, 501 U.S. at 629, [111 S.Ct. 2491])). In this opinion, we go even further than the federal courts in the level of unanimity required by spe-cifically distinguishing “multiple acts” cases from “alternative means” cases and ensuring that “separate and distinct culpable acts” or “in-dependent incidents” may not be treated as alter-native means of proving the conduct element of an offense. See supra note 13 and accompanying text.
a. alternative means of establishing lack of legal consent
In addressing the first issue, we must de-termine whether the alternative theories of guilt presented to the jury regarding the lack of legal consent—(1) the absence of consent or (2) ineffective consent (based on any of the four grounds of ineffective consent)—define separate crimes or may be treated as alter-native means of establishing an element of a
As in Klinge, we emphasize that the determina-tion whether the statutory alternatives may ra-tionally and fairly be treated as “alternative means” must be made on a case-by-case basis. In his concurring opinion (in which Levinson, J. joins), Justice Ramil suggests that, applying the factors discussed in Schad and adopted in Klinge, this court is somehow bound to interpret the Hawaiʻi Penal Code, specifically
For the reasons set forth below, we hold that, based on the facts and the charged offenses in this case, the alternative theories of absence of consent and ineffective consent do not represent separate crimes; rather, they are alternative means of proving the attendant circumstance element of a single crime. Although one theory is based on the statute defining the crime and the other the-ory negatives a defense based on the statute prescribing when consent is not a defense, both alternatives deal with the same attend-ant circumstance—the lack of legal consent.
The language and history of the relevant statutory provisions support treating the ab-sence of consent and ineffective consent as alternative means of proving the element of lack of legal consent rather than as separate crimes.
Hawaiʻi Constitution. See Concurring op. at 187-88 & n. 5, 29 P.3d at 377-78 & n. 5. To the contrary, the factors to be considered under Schad and Klinge include the intent of the legis-lature and the consideration of what is rational and fair under the due process clause of the Hawaiʻi Constitution. See discussion supra. We do not necessarily disagree with Justice Ramil‘s interpretation of
Moreover, as previously stated, the Com-mentary to
Hawaiʻi case law further supports the con-clusion that, in the context of this case, ab-sence of consent and ineffective consent re-flect equivalent notions of blameworthiness. In State v. Oshiro, 5 Haw.App. 404, 696 P.2d 846 (1985), the defendant, a dentist, raised the defense of consent to a charge of rape in the third degree based upon his assault upon his dental assistant while she was mentally incapacitated due to the defendant‘s adminis-tration of nitrous oxide. With the intent of engaging in sexual intercourse with his newly hired dental assistant, the defendant induced her to try nitrous oxide by telling her that she would be able to explain to patients what it felt like to be under nitrous oxide. At the time the offense occurred,
The term “mentally incapacitated” is de-fined in
HRS § 707-700(13) as the state of a person who is temporarily incapable of appraising or controlling his conduct due to a substance administered to him without his consent. UnderHRS § 702-235(4) (1976) [, the ineffective consent statute,] consent will not “constitute a defense if ... [i]t is induced by ... deception.” Defen-dant argues that the trial court incorrectly applied the consent statute to the mentally incapacitated statute, as the factor of con-sent inHRS § 707-700(13) is not a de-fense, but an element. Therefore, he con-tends, the trial court‘s finding that his deception negated the victim‘s consent is erroneous.... It is true that consent here is an element so
HRS § 702-235(4) is not direct-ly applicable. However, both common law and common sense impel the logical con-clusion that the denomination of consent as an element or a defense should not affect its basic nature. Extrinsic factors such as the burden of proof may change, but the essence of what constitutes consent does not. No other term in the legal lexicon is subject to such a dichotomy. Thus, if consent as a defense is subject to the ten qualifications ofHRS § 702-235 , then consent as an element is similarly restricted. We therefore agree with the trial court and hold that the deception did vitiate the victim‘s consent.
Id. at 407-08, 696 P.2d at 849-50 (footnote omitted) (some emphases added and some omitted). Therefore, in practice, this juris-diction has treated the absence of consent and ineffective consent as giving rise to the same culpability.
The history and practice in other juris-dictions also supports the conclusion that treating absence of consent and ineffective consent as alternative means of proving the
With respect to whether the statutory al-ternatives in this case may be treated as alternative means, it is not significant that the jury may have reached different conclu-sions regarding whether Complainant did not consent or any apparent consent was ineffec-tive, i.e., meaningless, because such differ-ences do not reflect disagreement as to the specific incident charged. Cf. Arceo, 84 Hawaiʻi at 32-33, 928 P.2d at 875-75 (requiring juror agreement as to the specific criminal act committed by the defendant); Valentine, 93 Hawaiʻi at 208, 998 P.2d at 488 (“unanimi-ty instruction was necessary [in Arceo] to ensure that each juror convicted the defen-dant on the basis of the same incident of culpable conduct.“). Although we recognize that the absence of consent and the giving of consent that is legally ineffective are mutual-ly exclusive circumstances, such mutual ex-clusivity does not preclude a determination that they may be treated as alternative means in this case because the jury‘s verdict as to each count was based on the same incident of culpable conduct. Cf. Rice v. State, 311 Md. 116, 532 A.2d 1357 (1987) (where relevant statute provided, by means of different subsections, that theft could be committed by either taking the property of another or by merely possessing it with the knowledge or belief that it had been stolen, the court concluded that statutory alterna-tives could be treated as alternative means of committing one crime even though alterna-tives were mutually exclusive). The sole is-sue is whether Complainant legally consent-ed. Cf. Oshiro, 5 Haw.App. at 408, 696 P.2d at 850 (stating that “the denomination of consent as an element or a defense should not affect its basic nature“).19
Based on the foregoing, we hold that the absence of consent and the relevant grounds
Id. at 638, [111 S.Ct. 2491] (emphasis added). Following Schad, federal courts have further clarified the difference between “means” and “elements” by recognizing that the jury must unanimously find that each element has been proven, but the jury need not agree unanimouslyIt is tempting, of course, to follow the example of Gipson to the extent of searching for some single criterion that will serve to answer the question facing us. We are convinced, howev-er, of the impracticability of trying to derive any single test for the level of definitional and verdict specificity permitted by the Constitu-tion, and we think that instead of such a test our sense of appropriate specificity is a distil-late of the concept of due process with its demands for fundamental fairness, see, e.g., Dowling v. United States, 493 U.S. 342, 352-353, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990), and for the rationality that is an essen-tial component of that fairness. In translating these demands for fairness and rationality into concrete judgments about the adequacy of leg-islative determinations, we look both to history and wide practice as guides to fundamental values, as well as to narrower analytical meth-ods of testing the moral and practical equiva-lence of the different mental states that may satisfy the mens rea element of a single offense. The enquiry is undertaken with a threshold pre-sumption of legislative competence to determine the appropriate relationship between means and ends in defining the elements of a crime.
Although subsections (a) and (b) are “statutory alternatives” for proving assault in the second degree, they could not rationally and fairly be treated as alternative means of establishing a single element of an offense. Rather, subsections (a) and (b) define separate offenses, each with its own “set of elements.” The history and practice in this jurisdiction also demonstrate that subsec-tions (a) and (b) have been treated as separate offenses. See, e.g., State v. Gomes, 93 Hawaiʻi 13, 15, 995 P.2d 314, 316 (2000) (indictment charged defendant with one count of assault in the second degree, in violation of subsection (a)); State v. Kekona, 77 Hawaiʻi 403, 404, 886 P.2d 740, 741 (1994) (defendant charged with assault in the second degree in violation of subsection (b)). Thus, if a defendant was charged with and evidence was adduced of a single incident of assault, the prosecution would have to elect which offense—subsection (a) or (b)—it was at-tempting to establish and, underAssault in the second degree. (1) A person commits the offense of assault in the second degree if:
(a) The person intentionally or knowingly causes substantial bodily injury to another; [or]
(b) The person recklessly causes serious bod-ily injury to another person[.]
We turn next to the question whether suf-ficient evidence of each alternative means submitted to the jury is required to uphold the verdict.
b. sufficient evidence of alternative means
In this case, the jury was instructed that it could find Defendant guilty based on the
determining whether statutory alternatives con-stitute alternative means or separate offenses[.]” Concurring op. at 188, 29 P.3d at 378.
As discussed above, in determining whether jury unanimity is required as to statutory alterna-tives, we look at the language of the statute at issue and the intent of the legislature to deter-mine whether the legislature intended to define separate offenses or merely define alternative means of establishing an element of the offense. However, we must also consider whether a par-ticular statutory interpretation is consistent with constitutional principles of due process. See su-pra note 11 & accompanying text (citing Arceo, 84 Hawaiʻi at 30, 928 P.2d at 872) (the right of an accused to a unanimous verdict in a criminal prosecution is guaranteed, in part, by the due process clause of the Hawaiʻi Constitution)). Al-though we recognize that “fairness” can be a somewhat “amorphous” concept, fairness is the underlying principle of the due process clause. See, e.g., Arceo, 84 Hawaiʻi at 30, 928 P.2d at 872 (discussing the right to a fair trial as a guarantee of the due process clause); State v. Timoteo, 87 Hawaiʻi 108, 126, 952 P.2d 865, 883 (1997) (dis-cussing the “quantum fairness to which [a defen-dant] is entitled under principles of due process” (citations omitted)). Moreover, it is useful to consider the history and practice in other juris-dictions when determining what the minimum standards of fairness should be under the Ha-waiʻi Constitution.
Despite Justice Ramil‘s staunch criticism of the analysis discussed herein and the application of the factors set forth in Klinge, we fail to see any significant difference in the analysis proposed in his concurring opinion. In order to determine whether statutory alternatives can rationally and fairly be treated as alternative means of proving an element of an offense, we consider the lan-guage and legislative history of the relevant stat-absence of consent or any of the four grounds of ineffective consent, essentially giving the jury five alternative means of es-tablishing that Complainant did not legally consent to the conduct. The ICA concluded that the consent instruction amounted to plain error based in part on the possibility that jurors may have found that Complainant consented to the conduct but that such con-sent was ineffective, where the prosecution did not present legally sufficient evidence of ineffective consent. In its application for a writ of certiorari, the prosecution contends that, although the ineffective consent instruc-tion was erroneously given, it was “so inap-plicable” that it could not have contributed to the verdict.
It is undisputed that there was legally sufficient evidence to support a jury finding
utory provisions, the history and practice in Ha-waiʻi and other jurisdictions, and whether the statutory alternatives reflect equivalent notions of culpability. Justice Ramil would apply the fol-lowing factors instead: “(1) the language of the statute; (2) the legislative history; (3) the nature of the proscribed conduct; and (4) the appropri-ateness of multiple punishment for the conduct engaged in the indictment.” Concurring op. at 188, 29 P.3d at 378 (citing UCO Oil, 546 F.2d 833, 836-37). However, the factors proposed by Justice Ramil are not materially inconsistent with this opinion or the opinion in Klinge. Cf. UCO Oil, 546 F.2d at 835-36 (discussing factors in the context of protecting the “fundamental due process rights of defendants“); Klinge, 92 Hawaiʻi at 587 n. 5, 994 P.2d at 519 n. 5 (citing UCO Oil as one of various approaches); Schad, 501 U.S. at 663, [111 S.Ct. 2491] (citing UCO Oil for the proposition that “the requisite specificity of the charge may not be compromised by the joining of separate offenses“). In fact, applying the factors set forth in UCO Oil, Justice Ramil adopts much of our analysis and reaches the same conclusion. See Concurring op. at 188-89, 29 P.3d at 378-79. For example, in discussing the “nature of the proscribed conduct” and the “appropriateness of multiple punishment,” Jus-tice Ramil is essentially considering the relative culpability and blameworthiness of the statutory alternatives and whether it is rational and fair (or appropriate) to treat the alternatives as sepa-rate crimes.
We recognize that, in considering whether stat-utory alternatives may be treated as “alternative means,” other jurisdictions describe the relevant inquiry in various ways. See supra note 15. See also Klinge, 92 Hawaiʻi at 587 n. 5, 994 P.2d at 519 n. 5. In Klinge, this court, having considered the factors discussed in UCO Oil, decided to adopt the factors set forth in Schad instead. Id. We see no reason to reverse that decision today.
In Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), the United States Supreme Court addressed whether, in an alternative means case where the jury was not instructed to reach unanimi-ty on one of the alternatives, legally suffi-cient evidence of each alternative submitted to the jury is required to comply with due process. In Griffin, the defendant was charged with a single count of conspiring to defraud an agency of the federal govern-ment,21 and the conspiracy was alleged to have had two objects: (1) impairing the ef-forts of the Internal Revenue Service to as-certain income tax liability; and (2) impairing the efforts of the Drug Enforcement Agency (DEA) to identify forfeitable assets. Id. at 47, 112 S.Ct. 466. The two objects were treated as alternative means of establishing the offense.22 At trial, the government failed to produce any evidence to prove interfer-ence with the DEA. Id. at 48, 112 S.Ct. 466.
The jury returned a general verdict of guilt against Griffin and her two codefendants. Id. The Court held that the due process clause of the fifth amendment to the federal constitution does not require that a general guilty verdict in a multiple object conspiracy case be set aside where the verdict left in doubt whether the jury had convicted the defendant of the first or second object, re-gardless whether the evidence is insufficient to support a conviction as to one of the objects. See id. at 56-60, 112 S.Ct. 466.
In affirming the defendant‘s conviction, the Court relied primarily on its holding in Tur-ner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). See Griffin, 502 U.S. at 56-57, 112 S.Ct. 466. As discussed by the Court in Griffin, Turner involved a claim that the evidence was insufficient to support a general guilty ver-dict under a one-count indictment charging the defendant with knowingly purchasing, possessing, dispensing, and distributing heroin not in or from the original stamped package, in violation of
The petitioner in Griffin sought
to distinguish Turner on the basis that it applies only where one can be sure that the jury did not use the inadequately sup-ported ground as the basis of the convic-tion. That assurance exists, petitioner claim[ed], when the prosecution presents no evidence whatever to support the insuf-ficient theory; if the prosecution offers some, but insufficient, evidence on the point, as it did in [Griffin], then the verdict must be set aside because it is impossible to determine the theory upon which the jury relied. Id. at 58, 112 S.Ct. 466 (emphases in original).
The Court re-jected a rule, advanced by the petitioner, that distinguished situations where there was ab-solutely no evidence in support of a theory from situations where there was some evi-dence, although insufficient. Id. The Court reasoned that such a rule would reward the greater failure of proof, was full of practical difficulty, and was not supported by Turner. Id. The Court recognized, however, that “it would generally be preferable” for the trial court to remove unsupported theories from the jury‘s consideration. Id. at 60, 112 S.Ct. 466.25
Although Griffin established that, under federal law, sufficient evidence was required for only one of the alternative means sup-porting a conviction, a number of state courts have rejected such analysis on state law grounds, holding that there must be suffi-cient evidence to support each alternative theory submitted to the jury to uphold a general verdict of guilty. See e.g., Common-wealth v. Plunkett, 422 Mass. 634, 664 N.E.2d 833, 837 (1996) (rejecting Griffin on state law grounds); Ortega-Martinez, 881 P.2d at 234-35 (rejecting Griffin on state law grounds); People v. Rodriguez, 914 P.2d 230, 273 (Colo.1996) (citing James v: People, 727 P.2d 850 (Colo.1986) (rejecting Turner on state law grounds)); see also Bloomquist v: State, 914 P.2d 812 (Wyo.1996) (upholding general verdict in alternative means case based on state law that requires legally suffi-cient evidence of each alternative ground for conviction); Timley, 875 P.2d at 246 (citing Kitchen, 756 P.2d at 109, for the proposition that unanimity is not required in an alterna-tive means case provided that substantial evidence supports each alternative means); cf. Ice, 997 P.2d at 741 (distinguishing Grif-fin, where there was strong evidence sup-porting one theory and none on another, from case where evidence of alternative theo-ry was legally insufficient despite significant testimony and prosecutorial effort). But see, e.g., Atwater v. State, 626 So.2d 1325, 1327-28 n. 1 (Fla.1993) (adopting Griffin with ap-proval), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); Guiton, 17 Cal.Rptr.2d 365, 847 P.2d at 53 (harmonizing Griffin rule with state law, holding that, on appeal of a conviction by a jury that was presented with alternate legal theories of conviction, one of which is factually inade-
In Plunkett, the Massachusetts Supreme Judicial Court held that a new trial on the charge of murder was required where the jury was presented with two alternative theo-ries of first degree murder, there was insuffi-cient evidence as to one of the theories, and it was impossible to tell upon which theory the jury relied. Rejecting the United States Supreme Court‘s analysis in Griffin, the Massachusetts court stated:
We do not accept the Supreme Court‘s premise that, in such a situation, the jurors will have obviously rejected the theory for which there was no evidentiary support. If the judge tells a jury that they may find the defendant guilty on a theory that is factually unsupported (in effect committing an error of law), the jurors understandably might believe that there must be some evidence to support that theory. The law of homicide is not uncomplicated in this Commonwealth. If judges at all levels have difficulty with it from time to time, it is obvious that lay jurors can easily be confused. The premise of the Supreme Court‘s position, that obviously the jury did the right thing, is not so well founded as to attract our acceptance of it. See People v. Guiton, 4 Cal.4th 1116, 1132-33, 17 Cal.Rptr.2d 365, 847 P.2d 45 (1993) (Mosk, J., concurring) (“the premise of jury ‘infallibility’ is unsupported“). If the premise of the Supreme Court‘s position were correct, a jury would never return a guilty verdict when the evidence was in-sufficient to warrant that verdict, and we know that is not so. If a person is to be incarcerated, ... in fairness there must be evidentiary support for each theory of guilt on which the judge tells the jury they may find the defendant guilty.
Plunkett, 664 N.E.2d at 837 (emphasis add-ed).26 Indeed, there are numerous examples of cases in Hawaiʻi where this court has reversed a defendant‘s conviction because the jury‘s verdict was not supported by legally sufficient evidence as a matter of law. See, e.g., State v. Balanza, 93 Hawaiʻi 279, 288, 1 P.3d 281, 290 (2000); State v. Bautista, 86 Hawaiʻi 207, 214, 948 P.2d 1048, 1055 (1997); State v. Malufau, 80 Hawaiʻi 126, 133, 906 P.2d 612, 619, vacated in part on other grounds, 80 Hawaiʻi 126, 906 P.2d 612 (1995); State v. Lucks, 56 Haw. 129, 132, 531 P.2d 855, 858 (1975).
In Ice, the Kansas Court of Appeals re-versed the defendant‘s rape conviction where one of the alternative theories of guilt pre-sented to the jury was not supported by sufficient evidence. 997 P.2d at 741. The jury was presented with alternative theories of establishing that sexual intercourse was committed without the consent of the com-plainant, including: (1) that she was over-come by force or fear; or (2) that she was incapable of giving valid consent. Id. at 739. The court held that there was legally insuffi-cient evidence of incapacity and that there was a real possibility that one or more of the jurors convicted the defendant based on that theory. Id. at 741. In reversing the defen-dant‘s conviction, the court in Ice distin-guished Griffin as a case where “one can reasonably assume the jury did not behave capriciously and convict on a theory in which there was no evidence, when there was strong evidence supporting another theory.” Id. The court in Ice reasoned that, “[w]ith so much testimony and prosecutorial effort in-vested into the ‘no capacity’ theory, we can-not say there is no real possibility that the verdict here was based only on the force [or] fear theory.” Id. Thus, the Kansas court adopted a rule, rejected by Griffin, recogniz-
A defendant‘s rights are clearly prejudiced where the jury is instructed that it may find him guilty based upon a theory of guilt that is not supported by sufficient evidence as a matter of law. The source of a defendant‘s right to the establishment of proof beyond a reasonable doubt in a criminal case is found in the due process clause of article I, section 5 of the Hawaiʻi State Constitution, indepen-dent of the United States Constitution. State v. Perez, 90 Hawaiʻi 113, 129, 976 P.2d 427, 443 (App.1998), rev‘d in part on other grounds, 90 Hawaiʻi 65, 976 P.2d 379 (1999). In Turner and Griffin, the Court held that, where a jury is presented with alternative means of establishing a crime and only one is supported by sufficient evidence, the federal constitution does not require proof beyond a reasonable doubt of each alternative theory. Turner, 396 U.S. at 420, 90 S.Ct. 642; Grif-fin, 502 U.S. at 56-57, 112 S.Ct. 466. How-ever, this court has recognized that the due process protection under the Hawaiʻi consti-tution is not necessarily limited to that pro-vided by the United States Constitution. State v. Bernades, 71 Haw. 485, 487, 795 P.2d 842, 843 (1990) (citing State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971)).
We are not convinced by the reasoning of the Supreme Court in Griffin that the jury will necessarily reject a theory unsupported by legally sufficient evidence, particularly where there is some evidence adduced and considerable argument presented to the jury. However, we recognize, as did the Kansas Court of Appeals, that, where there is no real possibility that the jury convicted based on an unsupported theory, e.g., where there is overwhelming evidence of one theory and absolutely no argument or evidence present-ed on another, there may be no reversible error. See Ice, 997 P.2d at 741; see also State v. Chapman, 229 Conn. 529, 643 A.2d 1213, 1221-22 (1994) (in an alternative means case, the court held that, although the trial court erroneously instructed jury on an alter-native for which there was no evidence, the instruction was harmless error).
Thus, based on our analysis of De-fendant‘s rights to a unanimous verdict and to due process under article I of the Hawaiʻi Constitution, we hold that unanimity is not required where alternative means of estab-lishing an element of an offense are submit-ted to the jury, provided that there is no reasonable possibility that the jury‘s verdict was based on an alternative unsupported by sufficient evidence. We further hold that: (1) “separate and distinct culpable acts” may not be treated as “alternative means” of proving the conduct element of an offense, see section III.B.1.; and (2) whether the alternative theories may be treated as “alter-native means” or constitute separate crimes is an initial determination to be made on a case-by-case basis. See Section III.B.2.a. Having determined that the absence of con-sent and ineffective consent may be treated as alternative means of proving the lack of legal consent, we now examine whether there was legally sufficient evidence of each alter-native submitted to the jury in this case.
3. Sufficiency of the evidence in this case
When reviewing the sufficiency of the evidence presented at trial, we have repeatedly stated that
evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to sup-port the conclusion of the trier of fact. State v. Quitog, 85 Hawaiʻi 128, 145, 938 P.2d 559, 576 (1997) (quoting State v. East-man, 81 Hawaiʻi 131, 135, 913 P.2d 57, 61 (1996)) (emphasis omitted). “Substantial evidence” as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable
caution to support a conclusion. Eastman, 81 Hawaiʻi at 135, 913 P.2d at 61. See State v. Birdsall, 88 Hawaiʻi 1, 8, 960 P.2d 729, 736, reconsideration denied, 88 Hawaiʻi 1, 960 P.2d 729 (1998).
Here, the jury was presented with the following alternative means of establishing a lack of consent: (1) the absence of consent; or (2) ineffective consent, based on any of four grounds. It is undisputed that there was legally sufficient evidence to support the jury‘s consideration of the absence of consent alternative. As to the jury instruction re-garding the ineffective consent alternative, the prosecution concedes that the evidence presented at trial “simply [did] not support an ineffective consent instruction in this case[,]” but argues that the instruction was so inapplicable that there is no real possibili-ty that the erroneous instruction contributed to the verdict. Our review of the record reveals that, although there was no argument presented or evidence adduced in support of grounds one and three of the ineffective con-sent statute,27 the prosecution presented con-siderable argument and adduced some evi-dence in support of the theory that, even if Complainant gave apparent consent, it was ineffective based on either ground two or ground four.
Under ground two, consent is inef-fective if “[i]t was given by a person who by reason of youth, mental disease, disorder or defect ... is manifestly unable or known by the defendant to be unable to make a reason-able judgment as to the nature of harmful-ness of the conduct alleged [.]” (Emphasis added.) Proof of the complainant‘s youth alone does not satisfy the elements of Ground two. Ground two of the ineffective consent statute is thus distinguishable from the strict liability offense described in
During trial, the prosecution spent consid-erable time focusing on Complainant‘s youth to explain why she did not ask to go home and chose to stay in the hotel room with Defendant, even after the earlier assaults, distinguishing Complainant‘s actions from an “adult response.” The prosecution‘s argu-ments also repeatedly referred to the effect of Defendant‘s “mental manipulation” and mental coercion upon Complainant as a young girl who was easily influenced.28 There was evidence that Complainant was fourteen-years-old. She also testified that “nothing like this had happened to her be-fore,” that she was embarrassed by Defen-dant‘s sexual advances, and that, when De-fendant made these advances, she tried to avoid him or push him away. However, even if Complainant was inexperienced or embarrassed, there was no evidence adduced that Defendant knew or should have known that Complainant was unable to make a rea-sonable judgment as to the nature or the harmfulness of the conduct alleged. Thus, although there was considerable argument regarding Complainant‘s youth and some ev-idence of her inexperience, there was legally insufficient evidence to establish ineffective consent under Ground two.
Based on the foregoing, if the jury believed that Complainant consented to the sexual conduct, Defendant should have been acquit-ted because there was no legally sufficient evidence in support of any of the four grounds of ineffective consent. However, the jury was instructed that they could find De-fendant guilty, even if they believed Com-plainant consented, based upon ineffective consent. Because there was considerable ar-gument and some evidence presented to the jury regarding the Complainant‘s youth and Defendant‘s mental manipulation and decep-
tion, it is possible that some or all of the jurors believed they could find guilt based on ineffective consent, despite the lack of legally sufficient evidence as to any of the ineffective consent grounds. See Ice, 997 P.2d at 741 (stating that, “[w]ith so much testimony and prosecutorial effort invested into [legally in-sufficient] theory, we cannot say there is no real possibility that the verdict here was based only on the [legally sufficient] theo-ry.“). Further, as recognized by the Massa-chusetts Supreme Judicial Court, “[i]f the judge tells a jury that they may find the defendant guilty on a theory that is factually unsupported (in effect committing an error of law), the jurors understandably might believe that there must be some evidence to support that theory.” Plunkett, 664 N.E.2d at 837. We cannot assume that the jurors rejected the ineffective consent theories presented to them. Therefore, we hold that the instruc-tion as to ineffective consent prejudicially affected Defendant‘s right to due process because (1) the jury was instructed that it could convict Defendant based on the ab-sence of consent or any of the four grounds of ineffective consent, (2) there was a reason-able possibility that the verdict was based upon at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent presented to the jury. In other words, the erroneous jury instruction regarding ineffective consent was not harmless because there was a rea-sonable possibility that the verdict was based on an alternative that was unsupported by legally sufficient evidence.
IV. CONCLUSION
Based on the foregoing, we vacate Defen-dant‘s convictions on Counts I, II, III, and IV and remand this case to the circuit court for a new trial on those counts.30 Subject to
Concurring Opinion by RAMIL, J., with whom LEVINSON, J., Joins
The appropriate method by which to deter-mine whether statutory alternatives repre-sent separate and distinct offenses or alter-native means of proving a single offense is by reference to legislative intent, and not by utilization of an amorphous due process anal-ysis. Accordingly, while I concur with the majority‘s conclusion that the defendant‘s conviction must be vacated because there is a reasonable possibility that the verdict in this case was based upon a statutory alternative unsupported by legally sufficient evidence, I do not join section III.B.2.a of the opinion. I write separately to explain my disagreement with the majority‘s analysis.1
As explained by a plurality of the Supreme Court of the United States:
Decisions about what facts are material and what are immaterial, or ... what facts are necessary to constitute the crime, and therefore must be proved individually, and what facts are mere means, represent val-ue choices more appropriately made in the first instance by a legislature than by a court.
Schad v. Arizona, 501 U.S. 624, 638, 111 S.Ct. 2491, 115 L.Ed. 2d 555 (1991) (quotation signals, brackets, and internal citation omit-ted). The question whether statutory alter-
natives constitute alternative means of prov-ing a single offense is therefore a question of statutory interpretation. Id. at 636, 111 S.Ct. 2491 (citing United States v. UCO Oil Co., 546 F.2d 833, 835-838 (9th Cir.1976)). This court has long recognized that its “pri-mary duty” in interpreting a statute is to “ascertain the intention of the legislature and to implement that intention to the fullest degree[.]” Kaiama v. Aguilar, 67 Haw. 549, 554, 696 P.2d 839, 842 (1985).
The analysis employed by the majority is simply inapposite to a determination of the very issue the majority seeks to resolve. A wide-ranging due process analysis that con-templates history, fairness, widespread prac-tice, and the moral equivalence of statutory alternatives is, for the most part, irrelevant to the issue of legislative intent. I fail to see, for example, how Kansas law is of any assis-tance to this court in ascertaining and effec-tuating the intent of the Hawaiʻi legislature.
I. The majority‘s utilization of the analy-sis set forth in Schad is misplaced
In Schad, the United States Supreme Court considered whether it was constitu-tionally permissible for the state of Arizona to treat premeditated murder and felony murder as alternative means by which to prove the offense of first degree murder. Rejecting Schad‘s contention that these stat-utory alternatives constituted separate of-fenses, the Arizona Supreme Court relied upon its holding in a prior decision, which in turn relied upon State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982).2 In Axley, the Arizona
I emphasize that although Arizona‘s prac-tice of treating premeditated murder and felony murder as alternative means of prov-ing first degree murder has “substantial his-torical and contemporary echoes[,]” Schad, 501 U.S. at 640, 111 S.Ct. 2491; see also State v. Serna, 69 Ariz. 181, 211 P.2d 455, 459 (1949), the Arizona Supreme Court‘s resolu-tion of the issue in Axley turned entirely on statutory interpretation. Noticeably absent from its analysis, and in stark contrast to the analysis employed by the majority of this court, is a survey of case law from other jurisdictions, or any discussion about history or degrees of blameworthiness and culpabili-ty. In my view, the Axley court quite prop-erly limited its analysis to the statute‘s plain
language because issues such as moral equiv-alence, blameworthiness, and culpability rep-resent value choices more appropriately left to the legislature. See Schad, 501 U.S. at 638, 111 S.Ct. 2491.
The issue in Schad was whether Arizona law in this respect was consistent with the Due Process Clause of the United States Constitution: Schad, 501 U.S. at 631, 111 S.Ct. 2491; see also Richardson v. United States, 526 U.S. 813, 820, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (citing Schad for the proposition that “the Constitution itself limits a State‘s power to define crimes in ways that would permit juries to convict while disagree-ing about means, at least where that defini-tion risks serious unfairness and lacks sup-port in history or tradition.“). The Court did not, as the majority suggests, set forth any “test” or standard to be utilized in determin-ing whether statutory alternatives delineate separate offenses or alternative means of proving a single offense. Rather, the plurali-ty in Schad expressly deferred to Arizona‘s decision that premeditated murder and felo-ny murder were not separate offenses. 501
In the present case ... by determining that a general verdict as to first-degree murder is permissible under Arizona law, the Arizona Supreme Court has effectively decided that, under state law, premedita-tion and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a sin-gle mens rea element. The issue in this case therefore is not whether “the State must be held to its choice,” ... for the Arizona Supreme Court has authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime, but rather whether Arizona‘s choice is unconstitutional.
Schad, 501 U.S. at 637, 111 S.Ct. 2491 (inter-nal citation omitted).
To determine whether Arizona‘s “choice” was consistent with due process, a plurality of the Court referred “both to history and to the current practice of other States.” Id. at 640, 111 S.Ct. 2491. The plurality also indi-cated that where statutory alternatives con-stitute alternative means of committing a single offense, the alternatives must reflect “notions of equivalent blameworthiness or culpability.” Id. at 644, 111 S.Ct. 2491. In his concurrence, Justice Scalia disputed that the plurality engaged in an evaluation of “moral equivalence,” contending that the plu-rality‘s analysis “ultimately relies upon noth-ing but historical practices.” Id. at 651, 111 S.Ct. 2491 (Scalia, J., concurring); see also State v. Fortune, 128 Wash.2d 464, 909 P.2d 930, 933 (1996) (noting that “the plurality‘s approval of Arizona‘s alternative means for first degree murder rested entirely upon an analysis of history and modern practice.“) (emphasis in original). The plurality ulti-mately concluded that Arizona‘s “choice” to define these statutory alternatives as alterna-tive means of proving first degree murder “did not fall beyond the constitutional bounds of fundamental fairness and rationality.” Id. at 645, 909 P.2d 930.
Schad is widely understood to stand not for the proposition set forth in the majority opinion, but rather for the proposition that the Due Process Clause of the United States Constitution does not require jury unanimity on alternative means of proving a single of-fense. See, e.g., State v. Derango, 236 Wis.2d 721, 613 N.W.2d 833, 841 (2000); State v. Nunez, 133 Idaho 13, 981 P.2d 738, 744 (1999); Ex Parte Madison, 718 So.2d 104, 106-07 (Ala.1998); Correa, 696 A.2d at 958; People v. Rand, 291 Ill.App.3d 431, 225 Ill. Dec. 580, 683 N.E.2d 1243, 1249 (1997); State v. St. Pierre, 693 A.2d 1137, 1139 (Me.1997); State v. Salazar, 123 N.M. 778, 945 P.2d 996, 1006 (1997); Richardson v. State, 673 A.2d 144, 146-47 (Del.Supr.1996). For this rea-son, criminal defendants attempting to distin-guish Schad have argued that their particu-lar state legislature did not intend to create statutory alternatives, but rather intended to define separate and distinct offenses. See, e.g., Fortune, 909 P.2d at 931 (On facts “nearly identical” to those in Schad, the criminal defendant argued that “the Washington Legislature did not intend to make premeditated murder and felony mur-der alternative ways of establishing the mens rea element of first degree murder.“). The Supreme Court of Oregon has explained: “The Supreme Court of the United States determined in Schad that different statutory offenses require separate verdicts, but that the question whether statutory alternatives amount to separate offenses is best answered by an inquiry into legislative intent [.]” State v. King, 316 Or. 437, 852 P.2d 190, 193 n. 6 (1993) (emphasis added).
Notwithstanding the foregoing, the majori-ty in Klinge made the following erroneous statement, which the majority relies upon in this case: “[Schad] set forth a test for deter-
Nevertheless, the majority resorts to “‘history and practice’ in Hawaiʻi and other jurisdictions, and whether the alternatives ‘reasonably reflect notions of equivalent blameworthiness and culpability.‘” Majority opinion at 174, 29 P.3d at 364 (citing Klinge, 92 Hawaiʻi at 587-89, 994 P.2d at 519-21). Applying this test, the majority engages in a wide-ranging analysis. Quite properly, the majority looks to “[t]he language and history of the relevant statutory provisions[.]” Ma-jority opinion at 174, 29 P.3d at 364. Quite unnecessarily, the majority considers the “history and practice in other jurisdictions.” Majority opinion at 175, 29 P.3d at 365.
To demonstrate the absurdity of the ma-jority‘s position, I emphasize two points. First, this is the very analysis employed by a plurality of the United States Supreme Court in concluding that premeditated murder and felony murder may be alternative means of proving first degree murder. See Schad, 501 U.S. at 645, 111 S.Ct. 2491. While I presume that the majority would agree that such is not the case in Hawaiʻi, it employs a test that purportedly leads to such a result.5 Second,
In sum, I fail to the see how the majority can extract from Schad an analysis utilized to determine the outside limits of a states’ pow-er to define statutory alternatives as alterna-tive means of proving a single offense, see Schad, 501 U.S. at 637, 111 S.Ct. 2491, and transform that standard into the test to be applied to ascertain the intent of the Hawaiʻi legislature in enacting the Hawaiʻi Penal Code.6
II. The correct analysis for determining whether statutory alternatives consti-tute separate offenses or alternative means of proving a single offense
In my view, a more appropriate analysis for determining whether statutory alterna-tives constitute alternative means or separate offenses can be found in United States v. UCO Oil Co., 546 F.2d 833 (9th Cir.1976), in which the United States Court of Appeals for the Ninth Circuit addressed this issue. The
practice” treating felony murder and premeditat-ed murder as alternative means of satisfying a mens rea requirement of high culpability. Id. at 640. Indeed, subsections (1)(b) through (e) would certainly fall within the scope of Arizona‘s first degree murder statute. See infra note 3. Causing the death of a prosecutor, judge, or witness, or utilizing a hired killer also likely reflect notions of equivalent “blameworthiness and culpability.” Id. at 644, 111 S.Ct. 2491. In sum, if the majority has really adopted Schad as the test to determine whether statutory alterna-tives delineate alternative means of proving a single offense, it has wrought great change upon Ninth Circuit articulated the following four factors: (1) the language of the statute; (2) the legislative history; (3) the nature of the proscribed conduct; and (4) the appropriate-ness of multiple punishment for the conduct charged in the indictment. Id. at 836-37; see also State v. James, 698 P.2d 1161, 1165-67 (Alaska 1985). Applying these factors, I conclude that the alternative theories of guilt presented to the jury in the instant case represent alternative means of proving a sin-gle offense.
The first factor to be considered is the language of the statute itself. UCO Oil, 546 F.2d at 836. The defendant in this case was charged with numerous sexual assault of-fenses.
The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the statute of limita-tions, lack of venue, or lack of jurisdic-tion).
I agree with the majority that, pursuant to
this jurisdictions‘s traditional understanding of offenses set forth in the Hawaiʻi Penal Code. If not, reference to the Schad test will continue to cause confusion in how we apply Arceo.
Unless otherwise provided by this Code or by the law defining the offense, consent does not constitute a defense if:
(1) It is given by a person who is legally incompetent to authorize the conduct al-leged; or
(2) It is given by a person who by rea-son of youth, mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged; or
(3) It is given by a person whose im-provident consent is sought to be pre-vented by the law defining the offense; or
(4) It is induced by force, duress or deception.
A plain reading of the foregoing reveals that the statutory alternatives are not sepa-rate offenses.
Common sense dictates a similar result.
The second factor to be considered in de-termining whether statutory alternatives cre-ate separate and distinct offenses is legisla-tive history and statutory context. UCO Oil, 546 F.2d at 837. With respect to statutory context, the various offenses recognized by the Hawaiʻi Penal Code are set forth in
Moreover, and as the majority explains,
The third factor to be considered is the nature of the proscribed conduct itself. UCO Oil, 546 F.2d at 837. The proscribed conduct in this case is the commission of sexual as-sault in the second, third, and fourth degrees. Our inquiry must therefore turn on whether the nature of the proscribed conduct differs upon application of the two statutory alterna-tives. In this case, it does not. Both sexual assault committed in the absence of consent and sexual assault committed following inef-fective consent fall well within the conven-tional understanding of sexual assault. In fact, for purposes of
The fourth factor concerns the appropri-ateness of multiple punishment for the con-
III. Conclusion
For the foregoing reasons, I agree with the majority that the alternative theories of absence of consent and ineffective consent do not represent separate crimes, but rather alternative means of proving the attendant circumstance element of a single crime. Therefore, while I do not join section III. B.2.a. of the opinion, I concur with the major-ity‘s disposition of this appeal.