Lead Opinion
Pеtitioner/Defendanh-Appellant Jason Kel-iikoaikaika Kalaola was charged with one count of failure to disperse in violation of Hawai'i Revised Statutes (HRS) § 711-1102 (1993),
Kalaola timely petitioned this court for a writ of certiorari to review the ICA’s June 26, 2009 judgment. In his application, Kalao-la argues that the conviction was not supported by sufficient evidence and that, accordingly, it should be reversed rather than remanded for a new trial. The State did not petition this court for review of the ICA’s judgment remanding to the circuit court for further proceedings, and did not file a response to Kalaola’s application to this court. Accordingly, the ICA’s finding of trial error with regard to the jury instructions is undisputed. The remaining question is whether the evidence presented at trial was sufficient to support Kalaola’s conviction.
We hold that sufficient evidence was presented to establish that Kalaola failed to disperse from the first floor of ATM, but that there was insufficient evidence to establish that Kalaola failed to disperse from the second floor. We further hold that the double jeopardy clause of the Hawai'i Constitution does not bar a retrial of Kalaola with regard to his alleged failure to disperse from the first floor, for which there clearly was sufficient evidence adduced at trial to support a conviction under HRS § 711-1102.
Although no Hawai'i eases address double jeopardy in the context of the specific factual situation at issue here, we are guided by our prior double jeopardy cases. In a variety of cases involving reprosecution after a jury verdict, this court has repeatedly recognized that, as long as there was sufficient evidence presented to support the conviction of the defendant for the charged offense, the double jeopardy clause bars a retrial only when there was in fact an acquittal, whether express or implied. Such was not the case here, since the jury convicted Kalaola.
We therefore vacate Kalaola’s conviction and remand for a new trial with regard to the events that transpired on the first floor.
I. Background
The following facts, taken from the record on appeal and the transcripts of the proceedings before the trial court, are relevant to the consideration of the issues presented here.
Kalaola was charged by way of complaint with one count of failure to disperse in violation of HRS § 711-1102(1). The complaint against Kalaola alleged:
On or about the 19th day of May, 2007, in the City and County of Honolulu, State*47 of Hawaii, [Kalaola], as one (1) of six (6) or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inсonvenience, annoyance, or alarm, or as a person in the immediate vicinity, failed to obey a law enforcement officer’s order to disperse, in violation of Section 711-1102(1) of the [HRS],
At trial, the State’s only witnesses were police officers who encountered Kalaola at ATM on the night of the alleged incident. For example, Officer Keani Alapa (Officer Alapa) testified he was dispatched to ATM because of a report of “approximately 50 people fighting.” Upon arriving at ATM, Officer Alapa and Officer Ryan Kaio (Officer Kaio) encountered “multiple fights going on, approximately maybe 50 to 75 people fighting” on the second floor of ATM. Officer Alapa testified that he observed fighting over “pretty much the whole area” of the second floor.
Officer Alapa testified that he observed Kalaola on the second floor “calling people out, challenging people to fight.” Officer Alapa further testified that he addressed the “general group” of which Kalaola was a part and ordered them to leave at least ten times. Officer Alapa testified that Kalaola did not leave at that time, but that the officers “eventually got a lot of people to leave the second floor and (inaudible) proceed down to the parking lot where some other incidents ignited down there.” Officer Alapa testified that it took approximately 20 minutes before the crowd started to go downstairs, and that he also eventually proceeded to the first floor, where he “saw [Kalaola] again on the sidewalk.”
Sergeant Albert Lee (Sergeant Lee) testified that, when he arrived at ATM, he saw “about 50” people “streaming out, they were still all yelling at each other, had some small fights breaking out.” He testified that he also saw Kalaola “streaming out” of the second floor, yelling and swearing. Sergeant Lee testified that he approached Kalaola and “told him to leave the area.” Sergeant Lee further testified that, when he approached Kalaola, Kalaola was yelling and cursing at other people in the area, and that Sergeant Lee “had to tell [Kalaola] at least maybe ten more times” to leave. Sergeant Lee also testified that there were other fights breaking out in the parking lot of ATM, with which he had to assist. He further testified that, when he came back to the front of ATM, “there were still other people fighting in the general area[,]” and that he again “asked [Kalaola] to leave and he wouldn’t.” Sergeant Lee testified that he then had Kalaola arrested for failure to disperse.
At the conclusion of the trial, the circuit court instructed the jury, with regard to the offense of failure to disperse, as follows:
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A person commits the offense of Failure to Disperse if he is one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, or he is a person in the immediate vicinity, and he knowingly fails to comply with a law enforcement officer’s order to disperse.
There are three material elements to the offense of Failure to Disperse, each of which the prosecution must prove beyond a reasonable doubt.
These elements are:
1. That, on or about the 19th day of May, 2007, in the City and County of Honolulu, State of Hawai'i, [Kalaola] was one of six or more pеrsons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, or he was a person in the immediate vicinity; and
2. [Kalaola] failed to comply with a law enforcement officer’s order to disperse; and
3. [Kalaola] did so knowingly.
(Emphasis added).
Although Kalaola requested that the circuit court include the statutory definition of “disorderly conduct” in the jury instructions, the circuit court did not instruct the jury on the definition of disorderly conduct.
The circuit court also gave the jury the following unanimity instruction, which was
The law allows the introduction of evidence for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt.
During closing argument, the Deputy Prosecuting Attorney (DPA) referred to the Arceo instruction in arguing that there were multiple acts to support conviction. Specifically, the DPA relied on the instruction to argue that “both” the events on the first floor and the events on the second floor could support conviction:
In order for the Prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt.
What this means, ladies and gentlemen, is whenever there is more than one act upon which proof of an element may be based.
Basically, ladies and gentlemen, what that means is, number one, the incident on the second floor and, number two, the incident on the first floor.
The incident on the second floor is when [Kalaola] was engaging in—was calling people out and Officer Alapa told [Kalaola] to disperse and [Kalaola] did not so [sic].
Officer Alapa chose not to arrest [Kalao-la] at that time. He chose not to arrest anybody at that time because he was outnumbered and it was not safe for either him or Kaio to effectuate arrests.
Their priority at that particular point was getting people—was to calm down the situation and getting people to leave the second floor.
The second incident, this is the incident with Sergeant Lee downstairs.
At that particular—and, ladies and gentlemen, that (inaudible) that all twelve of you must agree that one of these incidents happened.
Basically, you cannot (inaudible) where six of you agree that the second floor incident happened, six of you agree that the first floor incident happened and [Ka-laola] is guilty.
What that means is that twelve of you must agree that the second floor incident happened or the first floor happened or both happened.
Ladies and gentlemen, both did happen in this case, [Kalaola] failed to comply with Officer Alapa’s orders to disperse on the second floor and he failed to comply with Sergeant Lee’s orders to disperse on the first floor.[3]
(Emphasis added).
On April 18, 2008, the jury found Kalaola guilty on one count of failure to disperse. A timely appeal followed. In a May 29, 2009 Summary Disposition Order, the ICA concluded that the circuit court erred in (1) failing to properly instruct the jury on the statutory definition of “disorderly conduct” and (2) “failing to adequately instruct the jury that the ‘knowingly’ state of mind applied to all the elements of the offense.” State v. Kalaola, No. 29163,
II. Standards of Review
A. Sufficiency of the Evidence
We review the sufficiency of evidence on appeal as follows:
[E]videnee 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 support the conclusion of the trier of fact.
State v. Richie,
B. Constitutional Questions
“We review questions of constitutional law de novo, under the right/wrong standard.” Jou v. Dai-Tokyo Royal State Ins. Co.,
III. Discussion
A. The prosecution presented substantial evidence that Kalaola failed to disperse from the first floor of ATM, but failed to present substantial evidence that Kalaola failed to disperse from the second floor of ATM
A person commits the offense of failure to disperse if he or she (1) was one of “six or more persons [] participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm,” or was “in the immediate vicinity” of such a disturbance; (2) was ordered by a law enforcement officer to disperse; (3) failed to comply with that order; and (4) acted knowingly with respect to the foregoing elements. HRS § 711-1102. Accordingly, the prosecution was required to prove the foregoing elements and state of mind beyond a reasonable doubt. See State v. Assaye,
In analyzing the evidence in this ease, it is important to distinguish between “alternative means” and “multiple acts.” In State v. Jones,
This is also a “multiple acts” case.
The distinct multiple acts here are: (1) Kalaola’s alleged failure to leave the second floor of ATM after being ordered to do so by Officer Alapa, and (2) Kalaola’s alleged failure to leave the first floor after being ordered to do so by Sergeant Lee. In sum, the jury was presented with two acts, i.e., the alleged failures to disperse on the second and first floors of ATM, either of which could have been committed via two statutory alternative means, i.e., participating in disorderly conduct or being in the vicinity of disorderly conduct.
With this framework as a background, we will evaluate the sufficiency of the evidence with regard to each floor. First, we conclude that there was insufficient evidence that Kalaola violated HRS § 711-1102 by failing to disperse from the second floor of ATM. Officer Alapa did not testify concerning how long Kalaola remained on the second floor after Officer Alapa ordered the crowd to disperse, other than observing that he saw Kalaola again on the first floor at least 20 minutes later. Kalaola’s presence on the first floor at least 20 minutes later indicates that Kalaola complied with Officer Ala-pa’s order to disperse. Accordingly, there is not substantial evidence that Kalaola knowingly failed to comply with Officer Alapa’s order to disperse on the second floor of ATM.
However, there was sufficient evidence that Kalaola violated HRS § 711-1102 by failing to disperse from the first floor of ATM. First, there was substantial evidence as to both of the statutory alternative means, i.e., that Kalaola was one of “six or more persons [ ] participating in a course of disorderly conduct” or that he was in the “immediate vicinity” of such a disturbance. See HRS § 711-1102(1). Sergeant Lee testified that he saw “about 50” people “streaming out” of ATM, with “some small fights breaking out[,]” and that he saw Kalaola “streaming out” of the second floor, yelling and swearing. Sergeant Lee further testified that, when he approached Kalaola on the first floor, Kalaola was yelling and cursing at other people, and that “there were still other people fighting in the general area[.]” When viewed in the light most favorable to the prosecution, Sergeant Lee’s testimony is sufficient to enable a person of reasonable caution to support a conclusion that “six or more persons [were] participating in a course of disorderly conduct,” and that Kalaola was either “participating” in such conduct or in the “immediate vicinity.” See HRS § 711-1102.
Second, there is substantial evidence that Sergeant Lee ordered Kalaola to disperse. Sergeant Lee testified that he approached Kalaola and “told him to leave the area.” He further testified that he “had to tell [Kalaola] at least maybe ten more times” to leave. Accordingly, when viewed in the light most favorable to the prosecution, Sergeant Lee’s testimony provides substantial evidence that Kalaola was ordered to disperse. See In re Doe,
Third, there is substantial evidence that Kalaola failed to comply with Sergeant Lee’s order, because Sergeant Lee testified that he “had to tell [Kalaola] at least maybe ten more times” to leave, and that he “asked [Kalaola] to leave and he wouldn’t.” Accordingly, Sergeant Lee’s testimony provides substantial evidence that Kalaola failed to leave when ordered to do so, i.e., that he failed to comply with Sergeant Lee’s order to disperse. See id.
Finally, there is substantial evidence that Kalaola acted knowingly with respect to the foregoing elements. “[T]he mind of an alleged offender may be read from his or her acts or conduct and the inferences fairly drawn from all of the circumstances.” State v. Pudiquet,
Accordingly, there is substantia] evidence that Kalaola failed to disperse from the first floor of ATM.
B. Double jeopardy does not bar retrial of Kalaola
The remaining question is whether Kalaola can be retried in these circumstances. Ka-laola initially suggested, in his opening brief to the ICA, that he could be retried on the “alternative theor[y]” that was supported by sufficient evidence. However, during oral argument in this court, Kalaola suggested double jeopardy could bar retrial.
1. Double jeopardy principles
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb[.]” Similarly, article I, section 10 of the Hawai'i Constitution provides that no person “shall ... be subject for the same offense to be twice put in jeopardy[.]”
This court has “described the purpose underlying the prohibition against double jeopardy” as follows:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to*52 live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
State v. Quitog,
This court has also “recognized that there are three separate and distinct aspects to the protections offered by the double jeopardy clause.” Id. at 141,
However, “the protections of the double jeopardy clause are not absolute.” State v. Miyazaki,
In the instant case, we conclude that the lack of substantial evidence concerning Kalaola’s failure to disperse from the second floor of ATM does not bar remand with regard to Kalaola’s failure to disperse from the first floor of ATM, for which there clearly was sufficient evidence adduced at trial.
2. The jury neither expressly nor impliedly acquitted Kalaola of the charged offense
It is clear that “a defendant may not be retried for any offense of which he has
First, the concept of double jeopardy is enhanced in that after an acquittal, a defendant is freed of the threat of renewed prosecution on the more serious offense .... Second, such a ■rule does not inhibit a defendant in his decision of whether to appeal his conviction. The Commentary to HRS [§ ] 701-110[8 ] states, “If the defendant faces reproseeution for an offense of which he has been acquitted, he may be unfairly hampered in his decision about whether to contest the validity of the conviction for the lesser offense.” Under the rule we discuss today, the appellant would not be coerced into waiving his right to appeal his conviction on the lesser included offense for fear of being reprosecuted on the more serious offense.
Feliciano,
In the instant case, however, there was no express jury verdict of acquittal. Kalaola was charged with one count of failure to disperse in violation of HRS § 711-1102(1), and was convicted on that count. Although the prosecution argued that Kalaola committed two distinct acts of failing to disperse, the jury did not return an express verdict of acquittal with regard to either act. Moreover, as discussed further infra, the jury’s guilty verdict did not impliedly acquit Kalao-la with regard to his alleged failure to disperse from either floor.
In Green v. United States,
In Green, the defendant was indicted on two counts, one of which charged that he had committed arson, and one of which charged him with murder in the first degree.
In so doing, the Court noted that “[a]t [the defendant’s] first trial the jury was authorized to find him guilty of either first degree murder ... or, alternatively, of second degree murder....” Id. at 189-90,
[The defendant] was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gauntlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder.... In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’
Id. at 190-91,
Similarly, in Feliciano, the defendant was charged with attempted murder, and was found guilty of reckless endangering in the second degree.
Thus, the doctrine of implied acquittals has developed primarily in the context of reviewing convictions on lesser-included offеnses. See id.; see also State v. Loa,
The defendant urged that his conviction should be reversed. In considering whether double jeopardy would bar reproseeution of
[A]ny [] implication in this ease that the court made a finding of fact inconsistent with guilt must founder. The court’s erroneous assumption that recklessness was sufficient for conviction rendered it unnecessary, under the assumption, to go further in considering the evidence than a finding that [the defendant] recklessly waved his arms. Had the court applied the correct mens rea standard in its consideration of the evidence, it would have been further required to assess the weight and credibility of [the police officer’s] description of the actus reus. As we have observed, the court’s ruling is devoid of any mention of the issue. Under these circumstances, we cannot say that the court made a definitive finding of fact, invariably inconsistent with guilt, that might bar retrial.
Instead, having concluded that sufficient evidence was adduced at trial to sustain the charge, we apply the usual rule for trial error[.]
Id. (some emphasis in original and some added).
There are strong policy reasons in favor of requiring that the trier of fact make some determination in a defendant’s favor before a reviewing court will presume an acquittal. In addressing criticism that reversal for trial error may make it “quite possible that the jury would have acquitted [the defendant] if not for the trial error that required reversal,” it has been noted that:
while estimating the impact of a trial error always presents uncertainties, whether the result is a conviction or an acquittal, only in the latter situation is there concrete evidence, in the form of a not guilty verdict, that the jury may have resolved factual issues in favor of the defendant’s innocence. That concrete evidence entitles the defendant to the benefit of the doubt that conclusively presumes his innocence, while a conviction, even where probably influenced by trial error, offers no such starting point for assuming the jurors would have found defendant not guilty except for the error.
Wayne R. LaPave, et al., Criminal Procedure § 25.3(b) at 631-32 (3d ed.2007) (emphasis added).
In the instant case, as explained supra, Kalaola was not expressly acquitted by the jury. Moreover, Kalaola’s conviction on the charge of failure to disperse cannot be assumed to include an implied acquittal on either of the acts offered by the prosecution to support his conviction. Kalaola was not convicted on a lesser-included offense, such that his conviction must be interpreted as an implied acquittal on the greater charge. See Green,
This court noted that, because no specific unanimity instruction was given, “there is a ‘genuine possibility’ that different jurors concluded that Mundon committed different acts.” Id. Accordingly, this court held that “the trial court plainly erred in failing to provide such an instruction.” Id. at 355,
In contrast, in the instant case, Kalaola was never acquitted by a jury for either of the two alleged acts of failure to disperse. Thus, unlike Mundon, the retrial of Kalaola does not present a distinct possibility that Kalaola could be retried for an offense for which he was previously acquitted. Moreover, whereas the holding in Mundon relies on the well-established proposition that double jeopardy bars retrial following an express jury verdict of acquittal, nothing in Mundon purports to resolve the distinct factual situation presented here, where the jury expressly found the defendant guilty of the charged offense.
3. There was sufficient evidence to support Kalaola’s conviction for failure to disperse
The reversal of a conviction for insufficiency of the evidence constitutes a determination by the appellate court that the defendant should have been acquitted in the trial court in the first instance because, “as a matter of law [ ] the jury could not properly have returned a verdict of guilty.” See State v. Bannister,
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 ivas substantial evidence to support the conclusion of the trier of fact.
Jones,
In the instant ease, the evidence presented at trial was insufficient to support a conclusion that Kalaola failed to disperse from the second floor of ATM when ordered to do so by Officer Alapa. . However, this evidentiary insufficiency does not bar retrial of Kalaola on his alleged failure to disperse
In Burks v. United States,
It is unquestionably true that the Court of Appeals’ decision “represente[d] a resolution, correct or not, of some or all of the factual elements of the offense charged.” By deciding that the Government had failed to come forward with sufficient proof of petitioner’s capacity to be responsible for criminal acts, that court was clearly saying that Burks’ criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. Consequently, as Mr. Justice Douglas correctly perceived in Sapir [v. United States,348 U.S. 373 ,75 S.Ct. 422 ,99 L.Ed. 426 (1955) ], it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the District Court.
Id. at 10-11,
The Court further explained that “[t]he [djouble [jjeopardy [cjlause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Id. at 11,
In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its ease. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial -process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
Id. at 15,
The court identified, inter alia, “the failure to dismiss a faulty indietment[,]” “improper instruction,” “absence of the accused during a portion of the trial,” “improper hearsay testimony received,” and “failure to record jury instructions,” as trial errors. Id. at 14 & n. 8,
Relying on Burks, this court has determined that “[t]he prohibition against double jeopardy applies where the reversal is based on insufficiency of evidence[.]” Bannister,
Since we necessarily afford absolute finality to a jury’s verdict of acquittal no matter how erroneous its decision it is difficult to conceive how society has any greater interest in retrying the defendant when, on review, it is decided as a*58 matter of law that the jury could not properly have returned a verdict of guilty.
[Burks, 437 U.S. at] 16[,98 S.Ct. 2141 ]. However, the prohibition does not apply where judgment is reversed for a trial error because the effect of the decision does not constitute a failure of the government to prove its case. Id. at 10[,98 S.Ct. 2141 ],
The prohibition against double jeopardy where reversal is based on insufficiency of evidence is absolute. The appellate court cannot remand the case even where a new trial appears equitable. Id. at 11 n. 6[,98 S.Ct. 2141 ]. Furthermore, this prohibition applies only where the insufficiency of evidence is such that the appellate court finds that the government failed to prove its case beyond a reasonable doubt. Id. at 16 n. 10[,98 S.Ct. 2141 ].
Id. at 660,
In the instant case, there was substantial evidence that Kalaola failed to disperse on the first floor. Thus, the determination that there was not substantial evidence that Ka-laola failed to disperse on the second floor “does not constitute a failure of the government to prove its case.” See Bannister,
This analysis is consistent with our holding in Jones,
We then phrased the issue as follows: “in an alternative means case where it is impossible to tell which alternative the jury’s verdict is based upon, does due process require that each of the alternative means presented to the jury be supported by legally sufficient evidence?” Id. at 178,
We emphasized that the trial court had instructed the jury that it could find that the consent element was satisfied if any one of four alternative theories of ineffective consent was established by the State, and observed that based on that instruction being given, “the jurors understandably might believe that there must be some evidence to support that theory.” Id. at 183,
In sum, this court determined that:
(1) the jury was instructed that it could convict Defendant based on the absence of consent or any of the four grounds of ineffective consent, (2) there was a reasonable 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.
Id. (first emphasis in original, second emphasis added).
Accordingly, we determined that the defendant’s conviction could not stand. Id. However, despite determining that there was a “possibility that the verdict was based on an alternative means of establishing guilt not supported by legally sufficient evidence,” this court concluded that “the double jeopardy clause does not bar retrial on the means of establishing guilt for which there was sufficient evidence presented at trial” because “the error in this case was trial error.” Id. at 184 n. 30,
It is well-settled that, even where this eourt finds trial error, “challenges to the sufficiency of the evidence must always be decided on appeal. This is because ‘the [d]ouble [j]eopardy [c]lause bars retrial of a defendant once a reviewing court has found the evidence at trial to be legally insufficient to support a conviction.’ ” State v. Malufau,
A careful reading of this court’s discussion of double jeopardy in Jones is instructive:
*60 The double jeopardy clause bars retrial of a defendant once a reviewing court has found the evidence at trial to be legally insufficient to support a conviction. However, retrial is not barred when the reviewing court reverses a case due to trial error, such as erroneous jury instructions. Although our holding in this case is based, in part, on our conclusion that the jury instruction regarding ineffective consent raised the possibility that the verdict was based on an alternative means of establishing guilt not supported by legally sufficient evidence, it is undisputed that there was legally sufficient evidence of the other alternative of establishing guilt and, thus, the error in this case is trial error. Accordingly, the double jeopardy clause does not bar retrial on the means of establishing guilt for which there was sufficient evidence presented at trial.
Id. at 184 n. 30,
This court’s reasoning indicates that because there was sufficient evidence of one of the alternative means of establishing guilt but insufficient evidence of the other, the error in Jones was properly analyzed under the double jeopardy principles applicable to trial error. Put another way, the double jeopardy clause was not implicated because there was sufficient evidence “to support a conviction.”
Arceo is not to the contrary. Arceo was charged with one count of sexual assault in the third degree (Count I), and one count of sexual assault in the first degree (Count II).
At trial, the minor testified inconsistently concerning the number of sexual assaults he was subjected to. Id. at 24 n. 25,
This court held, inter alia:
*61 that when separate and distinct culpable acts are subsumed within a single count charging a sexual assault-any one of which could support a conviction thereunder-and the defendant is ultimately convicted by a jury of the charged offense, the defendant’s constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its ease-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the “conduct” element оf the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
Id. at 32-33,
Accordingly, this court concluded that the trial court erred in failing to give the jury a specific unanimity instruction, and that the error was not harmless beyond a reasonable doubt. Id. at 33,
Our opinion in Arceo clearly states that we found the evidence presented at trial sufficient to support “Arceo’s convictions [,] ”
In the instant case, the evidence presented at trial concerning Kalaola’s conduct on the first floor of ATM was clearly sufficient to support a conviction for failure to disperse. Accordingly, the double jeopardy clause is not implicated with regard to Kalaola’s failure to disperse from the first floor of ATM,
However, double jeopardy precludes the State from again seeking a conviction of Ka-laola based on his failure to disperse from the second floor of ATM. In order to obtain a conviction on retrial based on that act, the prosecution would necessarily be required to introduce additional evidence beyond that presented in the first trial. In the circumstances of this ease, where the prosecution specifically argued that Kalaola’s conduct on the second floor could independently support conviction, allowing the prosecution an opportunity to present necessary evidence that it “failed to muster in the first proceeding” would implicate double jeopardy. See Quitog,
IV. Conclusion
It is undisputed that trial error occurred in the instant case, insofar as the circuit court failed to properly instruct the jury concerning (1) the statutory definition of “disorderly conduct” and (2) the applicability of the “knowingly” state of mind to each element of the offense of failure to disperse. State v. Kalaola, No. 29163,
Accordingly, we affirm the judgment of the ICA, and remand the case for further proceedings consistent with this opinion.
Notes
. HRS § 711-1102 (1993) provides in pertinent part:
Failure to disperse. (1) When six or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, a peace officer may order the participants and others in the immediate vicinity to disperse.
(2) A person commits the offense of failure to disperse if the person knowingly fails to comply with an order made pursuant to subsection (1).
. For the purposes of this analysis, we consider the evidence in the light most favorable to the State. See State v. Richie,
3. Similarly, defense counsel argued in closing that the purpose of the Arceo instruction was to ensure unanimity with regard to the alleged failure to disperse from the first floor versus the alleged failure to disperse from the second floor:
I want to bring you back to Instruction No. 17, ... and that would be the instruction in which you must unanimously agree that the same act has been proven beyond a reasonable doubt. So I do want to highlight that there are several allegations of what happened and what transpired throughout the night, the early morning of May 19th.
There’s what supposedly happened on the second floor and there’s supposedly what happened on the first floor. You all must unanimously agree to the exact incident in which Jason Kalaola allegedly failed to disperse and you’ve got to agree upon that beyond a reasonable doubt.
. On appeal, the State argued that "[Kalaola] was engaged in a single violation of the statute through a continuing course of conduct comprising failure to disperse in its totality[.]” However, in its closing argument, the State argued that Kalaola's failure to disperse from either floor was independently sufficient to support a conviction. Thus, the State did not argue that Kalaola
. Each element of the offense must be proved beyond a reasonable doubt. HRS § 701-114(l)(a). Because we conclude that there was insufficient evidence that Kalaola knowingly failed to comply with Officer Alаpa’s order to disperse on the second floor, we need not address whether there was sufficient evidence concerning each of the remaining elements as to the second floor, including whether there was sufficient evidence of each of the statutory alternative means.
. The question of whether double jeopardy precludes Kalaola’s retrial was not raised by Kalaola in his briefs to the ICA or application to this court. To the contrary, after arguing in his opening brief that there was insufficient evidence to support the conviction in its entirety, Kalaola then argued:
Even if, however, the State adduced sufficient evidence for one of the alternative theories, it is impossible to determine which alternative theory the jury based its verdict upon because the circuit court did not provide an interrogatory to the jury. Based on the nature of the evidence and the arguments in the case, it is probable that the jurors based their decision on an alternative that was not supported by sufficient evidence. As such, Kalaola’s rights to a unanimous verdict and due process under article I, § 5 of the Hawaii State Constitution have been violated and Kalaola’s conviction must remanded [sic] for trial on the viable alternative.
Kalaola's counsel repeated that suggestion in his opening argument to this court, MP3: Oral Argument, Hawaii Supreme Court, at 27:55-28:19, 29:58-30:20 (Jan. 7, 2010), available at http://www.courts.state.hi.us/courts/oraL arguments/archive/oasc29163.html, a position with which the State agreed, id. at 48:51-49:14. It was not until defense counsel’s rebuttal closing that counsel suggested there might be a double jeopardy issue. Id. at 59:04-1:00:17.
. The dissent correctly observes that "federal precedents set forth minimum protections, and do not control the state constitution!.]” Dissenting opinion at 84,
. HRS § 701-110 (1993) provides, in pertinent part:
When prosecution is barred by former prosecution for the same offense. When a prosecution is for an offense under the same statutory provision and is based on the same facts as a former prosecution, it is barred by the former prosecution under any of the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside on appeal by the defendant.
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. We therefore agree with the dissent’s conclusion that the holdings in Feliciano, Whiting and Loa are inapposite, dissenting opinion at 86-87,
Although, the dissent speculates that "it is possible that [Kalaola] could be retried for conduct the jury had rejected as a basis for legal liability in the first trial[,]” since ”[i]t is impossible to know for which multiple acts the jury convicted [Kalaola],” dissenting opinion at 79, 237 P.3d at
. The dissent maintains that "the instant case hinges on the prosecution's failure to adduce sufficient evidence, and not on the court’s failure to properly instruct the jury.” Dissenting opinion at 81,
However, the instant case does not "hinge on” insufficiency of the evidence to any greater extent than Jones. It is undisputed that trial error occurred in the instant case, insofar as the circuit court failed to properly instruct the jury. Although the dissent attempts to discount the presence of trial error in this case by apparently contending that the disposition in Jones is proper only where insufficiency of the evidence occurs as a direct result of trial error, dissenting opinion at 83,
. We respectfully disagree with the dissent's attempt to distinguish Jones on the ground that, in Jones, the prosecution charged each act or incident in a separate count, and "the jury’s decision as to each act was readily discernable." Dissenting opinion at 82,
. We therefore respectfully disagree with the dissent's contention that this passage in Arceo indicates that "this court had determined that each of the underlying acts it had discussed as supporting the convictions rested on substantial evidence.” Dissenting opinion at 81,
. The dissent correctly notes that “the law regarding testimony on dates, times, and places, is a separate area of law and does not go to the sufficiency of the evidence.” Dissenting opinion at 80 & n. 10,
. The dissent asserts that "the prosecution is in a position, and has been since before Arceo was decided, to avoid this problem by either 1) presenting each act as a separate charge or 2) electing the specific act upon which it is seeking a conviction.” Dissenting opinion at 90,
Concurrence Opinion
in which DUFFY, J., joins.
In my view (1) the offense of Failure to Disperse, Hawai'i Revised Statutes (HRS) § 711-1102 (1993 & Supp.2007) (hereinafter, the disperse statute], presents alternative statutory means for conviction, (2) each alternative means must be supported by substantial evidence for conviction, (3) the instant case also involves multiple acts, (4) when multiple acts are offered in support of a single count each must be supported by substantial evidence, and (5) Respondent/Plaintiff-Appellee State of Hawai'i (Respondent) did not adduce substantial evidence as to all of the multiple acts involved in the single count of Failure to Disperse. I disagree with the majority’s conclusion that the instant ease should be remanded for a new trial on the act supported by substantial evidence. I believe this court’s precedent compels the conclusion that, in cases such as this one, reversal is required. In this case, remand raises double jeopardy concerns inasmuch as Petitioner/Defendant-Appellant Jason Kelii-
Petitioner was charged in a complaint filed on July 19, 2007, with Failure to Disperse.
I.
The following essential matters, some verbatim, are from the record and the submissions of the parties.
A.
Respondent presented several witnesses at trial. The rendition of events following is set forth in the Application. Honolulu Police Department (HPD) Officer Keani Alapa (Officer Alapa)
On the second floor, Officer Alapa observed about fifty to seventy-five fights occurring. He and Officer Ryan Kaio (Officer Kaio) shouted orders to the “general group” to disperse no less than ten times. Officer Alapa observed Petitioner “challenging people to fight” and “taking an aggressive stance.” On the first floor of ATM, Officer Alapa saw Petitioner again engaging in the same aggressive behavior, challenging people to fight and causing a disturbance.
Officer Kaio related that he was with Officer Alapa on the second floor of ATM for approximately five minutes, where he saw many people fighting, but not Petitioner. He testified to repeatedly telling the crowd “to leave the area.”
Sgt. Albert Lee (Sgt.Lee) recounted that when he arrived at the front of ATM on the first floor, there were about 15-20 officers on the scene. When Sgt. Lee arrived he saw “small fights,” “[tjhere were three or four fights going on[,]” and people watching “who had nothing to do with the fight[.]” He noticed a large number of people coming down from the second floor, many of whom were “yelling at each other” and fighting. Sgt. Lee observed three or four fights happening on the first floor with a lot of people standing around in that area.
Sgt. Lee testified he noticed Petitioner “streaming out” of the second floor, yelling, swearing, and challenging people to fight. The sergeant saw Petitioner coming from the second floor and repeatedly told Petitioner to leave. When Sgt. Lee told him to leave, Petitioner responded that he was waiting for the valet to get his car. He recounted that Petitioner was being restrained by friends and that he never saw Petitioner approach the valet. Sgt. Lee left that area and returned to find Petitioner still there.
Sgt. Brian Taniguchi (Sgt. Taniguchi) testified he was near the front entrance area, did not see any fights, and saw Sgt. Lee and Officer Alapa attempting to have Petitioner leave. Sgt. Taniguchi “pepper-sprayed” Petitioner in the course of arresting him.
B.
For the defense, Rocky Contado (Contado) testified that he drove with Petitioner to ATM, that he left his van with a valet, and that when the fighting started Petitioner was with him inside of an establishment called “Bikinis Cantina.” He testified that the police never entered Bikinis Cantina, and that, as he and Petitioner were leaving, he gave the valet ticket to Petitioner “because he had to return to Bikinis Cantina.”
However, about ten minutes later, Contado saw Petitioner on the ground in handcuffs. Contado maintained that “prior to returning to Bikinis Cantina, Contado was with [Petitioner] the entire night and Contado did not see [Petitioner] fighting, no one tried to fight with [Petitioner], and the police officers were not interacting with [Petitioner].”
Kainoa Jardine (Jardine), a music promoter, testified that he had two groups playing music at Bikinis Cantina. He related that Petitioner accompanied him to load equipment into Contado’s van after the fighting broke out, and Petitioner went to look for a valet to retrieve their car.
Jardine related that he “saw a police officer approach [Pеtitioner]” while Petitioner was waiting for the valet. Jardine “noticed that the police officer appeared mad, getting so close to [Petitioner] that the police officer almost bumped him,” but Jardine could not hear what the police officer was saying. According to Jardine, Petitioner was not angry or yelling, nor had he challenged people to fight when the police arrested Petitioner. Jardine saw another police officer come up from behind Petitioner and take him down to the ground, handcuffing him and spraying him with mace.
Petitioner testified in his own defense. He stated that he rode with Contado to ATM in Contado’s van. He did not yell, call “people out,” or fight. According to Petitioner, he was inside the bar during the fighting and the police did not say anything to him. He further maintained that, while he was looking for a valet on the first floor, he did not observe any fighting there. Petitioner asserted that after taking music equipment downstairs, he tried to locate the valet to retrieve his ear.
According to Petitioner, he heard officers telling everyone to leave, Officer Benjamin Ohai (Officer Ohai) told him to “hold up” and to leave the area, and he told Officer Ohai and Sgt. Lee he was attempting to find a valet. Then Sgt. Lee became angry with him, Officer Alapa bumped him and called him a “punk,” and forced Petitioner to the ground.
C.
The Complaint in this case contained only one charge as follows:
On or about the 19th day of May, 2007, in the City and County of Honolulu, State of Hawaii, [Petitioner], as one (1) of six (6) or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, or as a person in the immediate vicinity, failed to obey a law enforcement officer’s order to disperse, in violation of Section 711-1102(1) of the [HRS].
(Emphases added.)
In pertinent part the court instructed the jury as to the elements of the disperse statute in Instruction No. 14 as follows:
There are three material elements to the offense of failure to disperse^] each of which [Respondent] must prove beyond a reasonable doubt.
These three elements are:
One, that on or about the 19th day of May 2007[,] in the City and County of Honolulu, State of Hawai‘i[, Petitioner]*65 was one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm or he was a person in the immediate vicinity.
Two, [Petitioner] failed to comply with a law enforcement officer’s order to disperse.
And three, [Petitioner] did so knowingly.
(Emphases added.)
In that connection, the relevant parts of Respondent’s closing arguments to the jury follow. Respondent first argued that Petitioner was one of six or more persons engaged in disorderly conduct.
Instruction No. 14, it lays out three essential elements that [Respondent] must prove in finding [Petitioner] guilty of failure to disperse.
First, that on or about the 19th day of May 2007[,] in the City and County of Honolulu, State of Hawaii, [Petitioner] was one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm or he was a person in the immediate vicinity.
And two, [Petitioner] failed to comply with a law enforcement officer’s order to disperse.
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Number one, the first thing that we have to pj'ove is that [Petitioner] was one of six or m,ore people participating in a course of disorderly conduct likely to cause substantial harm, serious inconvenience, annoyance or alarm or he was a person in the immediate vicinity.
So if we take a look at that and we take a look at the incidents in this ease, first, at around 12:25 a.m. on May 19th, 2007[,] Officers Alapa and Kaio were called to the [ATM] on a report of a large fight.
Officer Kaio estimates between 30 or Ifi people were fighting
Officer Alapa estimates 50 to 75 people were fighting.
Either one, obviously they didn’t get an exact count, but there were certainly more than six people involved in this.
When they arrived, they arrived on the east part of [ATM].
They come into the marketplace. They hear loud noises. They hear yelling.
Respondent then described the second floor incident.
They go upstairs and then they see people fighting.
Officer Alapa testifies that most of the fighting was going on over here, but it actually spread all over the second floor of [ATM],
Officer Kaio testified likewise.
At that point, those were the only two officers on the scene.
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In the meantime, Officer Alapa, among the many people that were fighting, Officer Alapa notices [Petitioner], He was there yelling, challenging people to a fight, using profanity.
At that point, Officer Alapa tells [Petitioner] and some of the other people to move on, to leave, to disperse.
He didn’t ask them to do that. He told them to do that as a way to break up the fight.
[Petitioner] did not adhere to the order to disperse.
Officer Alapa said that he ordered [Petitioner] to disperse around ten times while he was on the second floor, and [Petitioner] did not comply with that.
(Emphases added.)
Respondent subsequently described the first floor incident.
Sergeant Lee sees [Petitioner] on the first floor. He comes down. He—[Petitioner] goes towards the front area on the first floor of [ATM] near the parking lot near the valet. They basically exit [ATM].
Sergeant Lee observes [Petitioner]. He observes [Petitioner] getting agitated. He observes him yell. He observes him challenging people to fight.
He also observes that other people were holding back [Petitioner].
Sergeant Lee said—told [Petitioner] to leave, as well.
He didn’t ask him to do that. He told them to do that.
*66 Again, [Petitioner] failed to do so.
In the meantime, there were other fights going around. There was a fight going around in the parking lot there, as well.
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Sergeant Lee made an arrest.
He comes back up. He sees [Petitioner] (inaudible) he told [Petitioner] to leave, to go to the valet.
[Petitioner] has failed to do so.
Sergeant Lee (inaudible) to arrest [Petitioner] at that point.
[Petitioner]—he told [Petitioner] to leave again. [Petitioner] does not leave.
So Sergeant Lee testifies that [Petitioner] was starting to get aggressive towards more people.
At that time, that’s when Sergeant Lee made the order to arrest [Petitioner] for failure to disperse.
Ladies and gentlemen, that in relation to the elements of the offense is, number one, [Petitioner] was there.
In fact, he was one of six or more people engaging in the course of disorderly conduct.
(Emphases added.)
Respondent argued that orders to disperse were given on the second and first floors.
Number two, the second element, Officer Alapa on the second floor of [ATM] ordered [Petitioner] to leave and to disperse approximately ten times. [Petitioner] failed to do so.
Downstairs, Sergeant Lee ordered [Petitioner] to disperse around ten times over two different spans of times. [Petitioner] failed to do so.
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Now, ladies and gentlemen, another instruction which is also important that you must follow is Instruction No. 17, which shows that the law allows the introduction of evidence for the purpose of showing there was more than one act upon which proof of an element of an offense may be based.
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Basically, ladies and gentlemen, what that means is, number one, the incident on the second floor and, number two, the incident on the first floor.
The incident on the second floor is when [Petitioner] was engaging in—was calling people out and Officer Alapa told [Petitioner] to disperse and [Petitioner] did not do so.
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The second incident, this is the incident mth Sergeant Lee downstairs.
(Emphases added.)
Respondent argued “both” the second and first floor incidents were separate violations of HRS § 711-1102.
Ladies and gentlemen, both did happen in this case, [Petitioner] failed to comply mth Officer Alapa’s orders to disperse on the second floor and he failed to comply with Sergeant Lee’s orders to dispersе on the first floor.
Ladies and gentlemen of the jury, ultimately, the evidence that’s been presented to this case ultimately comes down to the issue of credibility, who to believe.
Do you believe the officers?
Or do you believe [Petitioner’s] witnesses?
(Emphases added.) The court did give a specific unanimity instruction
The law allows the introduction of evidence for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously*67 agree that the same act has been 'proved beyond a reasonable doubt.
(Emphasis added.)
D.
On appeal to the ICA, Petitioner argued that “1) the court failed to properly instruct the jury regarding the material elements for the charged offense; and 2) Respondent failed to adduce sufficient evidence to establish each alternative means of committing the offense that was presented to the jury.” State v. Kalaola, No. 29163,
With respect to the first argument, the ICA considered the commentary on HRS § 711-1102 which stated “that the offense of Failure to Disperse is ‘an aggravated form of disorderly conduct.’ ” According to the ICA, the statutory definition of “disorderly conduct” should have been included in the jury instructions and, thus, it vacated the judgment of the court and remanded the ease for a new trial. Kalaola,
With respect to the second argument, Petitioner contended that there was not “sufficient evidence to establish each alternative means of committing the offense that was presented to the jury.” Id. at *1. The ICA stated that
[t]he failure to disperse offense may be proved by alternative means, namely, that [Petitioner] knowingly was either one of six or more persons participating in a course of disorderly conduct or in the immediate vicinity thereof, when [Petitioner] knowingly failed to comply with a law enforcement officer’s order to disperse.
Id. at *2 (emphasis added). The ICA summarily concluded that “there was sufficient evidence to prove that [Petitioner] engaged in conduct constituting the charged offense.” Id. at *3.
II.
Petitioner lists the following question in his Application: “Whether the ICA gravely erred in holding that there was sufficient evidence to establish each alternative means of failure to disperse.” Respondent did not file a memorandum in opposition to Petitioner’s Application to this court.
III.
A.
Petitioner argues that his case involves statutory alternative means of committing the offense. According to Petitioner, “[i]n an alternative means case, where it is impossible to tell which alternative theory the jury’s verdict is based upon, due process requires that each of the alternative means presented to the jury be supported by legally sufficient evidence.” (Citing State v. Jones,
The definition of an alternative means case is as follows:
In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.
State v. Rabago,
In other words, in an alternative means case where it is impossible to tell which alternative the jury’s verdict is based upon, does due рrocess require that each of the alternative means presented to the jury be supported by legally sufficient evidence?
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... [Bjased on our analysis of [the defendant's rights to a unanimous verdict and to due process under article I of the Hawaii Constitution, we hold that unanimity is not required where alternative means of establishing an element of an offense are submitted to the jury, provided that there is no reasonable possibility that the jury’s verdict was based on an alternative unsupported by sufficient evidence.
Jones,
B.
In considering Petitioner’s argument, it must first be determined whether the statute does set forth statutory alternative means of committing the offense of failure to disperse. See State v. Klinge,
The test for ascertaining whether a statute sets forth alternative means or separate crimes is “whether the level of verdict specificity required by the [jury] instructions was rational and fair, considering history and practice, and the degree of blameworthiness and culpability.” Klinge,
Second, this court considered whether the two mental states “reasonably reflect notions of equivalent blameworthiness and culpability.” Id. at 588,
In Jones, the defendant was charged with multiple counts of Sexual Assault in the Second Degree and Sexual Assault in the Fourth Degree.
Referring to Klinge, Jones first looked to the “language and history of the relevant statutory provisions[.]” Id. It noted that the commentary to the parallеl Model Penal Code § 2.11 “[made] clear that the consent provisions deal generally with the concept of consent and must be analyzed in the context of the particular offenses to which they apply.” Id. at 174-75,
Jones also examined cases from Hawai'i and other jurisdictions indicating that “absence of consent and ineffective consent reflect equivalent notions of blameworthiness.” Id. Based on these factors, Jones concluded that the two mental states set forth alternative means.
C.
The plain language of HRS § 711-1102, see supra note 1, makes it applicable to those participating in “disorderly conduct” and those in the “immediate vicinity” of disorderly conduct. Thus, the instant case presents the same issue of whether statutory alternatives are alternative means requiring a unanimity instruction “or instead create separate crimes requiring individual proof.” Klinge,
The legislative history of HRS § 711-1102 does not make reference to anything indicating an intent to treat the statute as setting forth separate crimes as opposed to alternative means of committing the same offense. The commentary to HRS § 711-1102 briefly mentions that the statute “provides a procedure under which” police officers may order both those “participating in a course of disorderly conduct” as well as those “in the immediate vicinity” to disperse. Reference to the fact that police officers give “similar order[s]” to both groups provides some support for the proposition that alternative means are described in HRS § 711-1102. HRS § 711-1102 cmt. (1993).
The legislative history indicates that enactment of HRS § 711-1102 was part of a “complete reorganization of the criminal law of the State of Hawaii” and is “a derivative of the [MPC.] ” Conf. Comm. Rep. No. 1, in 1972 House Journal, at 1035. An examination of the parallel MPC section does provide some insight into the statute. HRS § 711-1102 is almost identical to MPC § 250.1, which states in relevant part:
(2) Failure of Disorderly Persons to Disperse upon Official Order. Where [three] or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor.
(Emphases added.) The explanatory notes of MPC § 250 indicate that its general purpose is “to provide a rational grading of penalties [for riot, disorderly conduct and related offenses] and especially to limit the discretion of the minor judiciary to impose substantial imprisоnment for petty infrae-tions[.]”
A cursory glance at the statute may raise questions as to why those in the immediate vicinity should be punished to the same degree as those who are causing the “substantial harm or serious inconvenience.”
[Failure of Disorderly Persons to Disperse extends] liability to anyone who refuses or knowingly fails to depart from the immediate vicinity as ordered, even if he was not personally a participant in the disorderly conduct there occurring. Liability on these terms is largely a response to practical necessity. Law enforcement officers who confront a public disturbance threatening substantial harm or serious inconvenience need the authority to require that the crowd disperse and to demand compliance from everyone there present.... This does not mean that mere presence should suffice for criminal liability, but it does support imposition of penal sanctions for refusal or knowing failure to move on. This much inconvenience can be reasonably demanded of any citizen to avoid escalation of the disorder and possible violence.
MPC at 232 (emphases added).
The commentary plainly states that the treatment afforded these two seemingly distinct groups is a “practical necessity” inasmuch as those in the immediate vicinity who fail to disperse may seriously impede officers’ attempts to prevent disturbances that threaten substantial harm. It is manifest that refusal to leave the scene of a disturbance increases the risk that the disturbance will escalate. Thus, the commentary compels the conclusion that equal notions of blameworthiness apply to the two distinct groups liable under MPC § 250.1 and HRS § 711-1102 and that the statute should be construed as setting forth alternative means.
HRS § 711-1102 sets forth distinct alternative means. As the court’s jury instructions state, a person commits the offense of failure to disperse when he or she (l)(a) is one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, or (l)(b) is in the immediate vicinity of one of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, and (2) knowingly fails to comply with a law enforcement officers’s order to disperse. To sustain the conviction with regard to statutory alternative means, the prosecution must have adduced substantial evidence with regard to the statutory alternative means set forth in sections (l)(a) and (l)(b).
IV.
Two issues not discussed in Klinge were raised in Jones. The first was “whether jury unanimity is required when the jury is presented with alternative means of establishing an element other than mental state; and [the second,] whether due process requires sufficient evidence of each alternative means to uphold a verdict where it is impossible to tell which alternative the jury relied upon.” Jones,
To reiterate, Jones stated that “unanimity is not required where alternative means of establishing an element of an offense are submitted to the jury, provided that there is no reasonable possibility that the jury’s verdict was based on an alternative unsupported by sufficient evidence.” Id. (emphasis in original). Thus, for example, whеn a jury is presented with two alternative means, one of which is supported by substantial evidence and the other is not, a defendant’s “rights to a unanimous verdict and to due process under article I of the Hawaii Constitution” are violated. Id.
V.
A.
Petitioner indirectly argues that his case is also a multiple-acts ease. A multiple-acts
In remanding the case for a new trial and ordering the court to give a specific unanimity instruction, Arceo stated, “Because our disposition of the present appeal is grounded in ‘trial error’ and the evidence adduced at trial was clearly sufficient to support [defendant’s] convictions, double jeopardy concerns are not implicated by a new trial.” Arceo,
B.
However, a unanimity instruction is not required where a charged offense is based on a single incident of culpable conduct. See State v. Valentine,
Respondent concedes that in presenting the issue at trial, the prosecution separated the incident into conduct on the second floor and conduct on the first floor, arguing that “[Petitioner] was actively engaged in disorderly conduct in two (both) instances and that he failed to follow the officer’s orders to leave subsequent to each incident.” In spite of this, Respondent argued on appeal that the situation is analogous to a physical attack in that the charge would “not be parsed into separate components” for each blow delivered. In other words, according to Respondent, “[Petitioner] was engaged in a single violation of the statute through a continuing course of conduct comprising failure to disperse in its totality[.]”
However, the prosecution may not argue on appeal a different theory than was argued before the court. See State v. Sunderland,
Nevertheless, an examination of the argument on the merits reveals that Respondent’s single continuous offense theory is incorrect. Respondent relies on State v. Temple,
A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an uninter-mittent force, however long a time it may occupy ... not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences.
(Quoting 22 C.J.S. Criminal Law § 1, at 6 (1961). (Emphasis in original.)) Citing to the ease notes
But Respondent’s citation to Temple is inapposite. Temple involved the arrest and conviction of the defendant for the alleged theft of a firearm. Temple,
In contrast, the disperse statute does not contain similar language. HRS § 711-1102 simply grants police officers the power to arrest those who have knowingly failed to disperse after having been ordered to do so. The plain language of the statute indicates that a violation occurs by a single instance of failing to comply with a police officer’s order to disperse. However, as the answering brief concedes, in presenting the issue at trial, Respondent separated the case into two parts, “number one, the incident on the second floor and, number two, the incident on the first floor[,]” and argued Petitioner was guilty of “both.” Thus, Petitioner’s case is manifestly also a multiple acts case.
VI.
Based on the foregoing, it must be determined whether the multiple acts, both the act on the first floor of ATM and the act on the second floоr, provided substantial evidence to sustain Petitioner’s conviction for all of the elements of HRS § 711-1102, including both of the statutory alternative means. To reiterate, the two statutory alternative means are that (1) Petitioner was one of six or more people participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, or (2) Petitioner was in the immediate vicinity of six or more people participating in a
A.
As to the incident on the second floor, there is not substantial evidence to support Petitioner’s conviction. Testimony of the officers who responded to the fights on the second floor of ATM stated that Petitioner was seen upstairs “in the same general central area” where there were an estimated “50 to 70 people fighting.” Petitioner himself testified that “the whole floor was packed” and there were about 200 people there. When Officer Alapa saw Petitioner he was “challenging people to fight.” Thus,- there is evidence in the record that “six or more persons were participating in a course of disorderly conduct” and that Petitioner was either “participating” in the conduct or a person “in the immediate vicinity[.]” HRS § 711-1102.
Second, Respondent must show that Petitioner knew of the order to disperse. Officer Alapa’s testimony did not indicate that he addressed Petitioner directly or was in any way able to capture his attention. However, Officer Alapa “addressed the general group” of which Petitioner was a part, asking them to leave, although he did not address Petitioner personally. Officer Alapa stated that Petitioner “did not leave at that time[.]” According to Officer Alapa, it took about twenty minutes before they “got a lot of people to leave the second floor and (inaudible) proceed downstairs.” But there is no evidence that Officer Alapa had Petitioner in view for the entire twenty minutes or that Petitioner was on the second floor for twenty minutes. Indeed, Officer Kaio asserted that he and Officer Alapa were on the second floor for only about five minutes. Thus, Respondent was unable to establish how much time had passed before Petitioner left the second floor. Both Officers Alapa and Kaio testified that they had to deal with a number of different situations on the second floor.
However, it was clearly established that Petitioner was seen on the first floor by Officer Alapa when the officer went downstairs. Viewing the evidence in the light most favorable to the prosecution, the evidence could support the inference that Petitioner did hear the order to leave inasmuch as he left for the first floor. Hence, the statute’s requirement that Petitioner know about the order was satisfied.
The final issue in regard to Petitioner’s upstairs conduct is whether or not he complied with the order to leave. “While a defendant’s state of mind can rarely be proved by direct evidence, ‘the mind of an alleged offender may be read from his or her acts or conduct and the inferences fairly drawn from all of the circumstances.’ ” State v. Pudiquet,
Petitioner’s presence downstairs a short time after the order was given is evidence of Petitioner’s compliance with the order to disperse. Conviction requires that Petitioner knowingly failed to comply with the officers’ orders to leave. There is no substantial evidence that Petitioner knowingly failed to comply with the order to disperse; rather, the evidence appears to be to the contrary.
Furthermore, the statute is silent as to the time frame within which Petitioner was required to disperse. HRS § 711-1102 only requires that he “knowingly fail to comply with the order” to leave the immediate area. The willful act of disobeying an order to leave cannot be inferred by Petitioner’s conduct because he was seen downstairs a short time later. Thus, Respondent did not adduce “[sjubstantial evidence as to every material element of the offense charged!.]” Richie,
B.
As to the incident on the first floor, it appears there was substantial evidence to support Petitioner’s conviction. The testimony of Officers Alapa, Kaio, and Sgt. Lee indicates that they saw Petitioner on the first floor of the ATM complex. Officer Alapa’s testimony was silent as to the number of people on the first floor, but Sgt. Lee estimated that there were about fifty people “streaming out [from upstairs]” and that “they were all still yelling and fighting.”
Sgt. Lee first saw Petitioner “streaming out in [the] area.” He observed Petitioner yelling, swearing, and “challenging people to fight.” His friends were physically restraining him. Sgt. Lee testified that “there were three or four fights going on[.]” Obviously, a fight would include at least two people. Hence, there was sufficient evidence to support the inference that there were at least six people engaged in disorderly conduct on the first floor. The record thus establishes that Petitioner was either part of a group of six or more persons or, arguably, in the immediate vicinity of six or more persons who were “participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm[.]” HRS § 711-1102.
Sgt. Lee approached Petitioner and “told him to leave the area.” According to Sgt. Lee’s testimony, Petitioner refused to do so and Sgt. Lee had to tell Petitioner to leave at least ten more times. Petitioner’s refusal to leave, as testified to by Sgt. Lee, constitutes substantial evidence that Petitioner “knowingly fail[ed] to comply with an order” to disperse. HRS § 711-1102. “[T]he testimony of a single witness, if found by the trier of fact to have been credible, will suffice [to establish substantial evidence].” In re Doe,
C.
In sum, there was not substantial evidence that Petitioner failed to disperse on the second floor, however, there was substantial evidence that Petitioner failed to disperse on the first floor. Respondent argued to the jury that Petitionеr violated the disperse statute on both floors. If the jury accepted Respondent’s theory as to “both” incidents, it was wrong, because there was not substantial evidence to support conviction for the second floor events. If the jury decided to base its conviction on only one of the floors, it is impossible to determine whether the jury relied on the second floor incident for which there was insufficient evidence, or on the first floor incident.
Arceo stated that “an accused in a criminal case can only be convicted upon proof by the prosecution of every material element of the crime charged beyond a reasonable doubt, ... [and this] constitutional ‘precept’ also implicates the defendant’s right to due process of law[.]” Arceo,
VIL
A.
At oral argument the issue was raised as to whether remanding for a new trial on the alternative means and multiple acts supported by substantial evidence would violate the double jeopardy clause. Although this issue was not raised by Petitioner in either the briefs or Application, this court has “the power to sua sponte notice plain errors or defects affecting substantial rights[.]” State v. Hernandez,
B.
In addressing whether double jeopardy precludes retrial, this court has distinguished between “trial error” and “evidentiary insufficiency.”
[RJeversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
State v. Hamala,
In Jones, this court stated that remanding the defendant’s case for a new trial on the statutory alternative supported by substantial evidence would not violate the double jeopardy clause, but acknowledged the distinction between a remand for trial error and reversal for insufficient evidence.
We note that our disposition in this ease does not implicate the double jeopardy clause of article I, section 10 of the Hawai'i Constitution. The double jeopardy clause bars retrial of a defendant once a reviewing court has found the evidence at trial to be legally insufficient to support a conviction. However, retrial is not barred when thе reviewing court reverses a ease due to trial error, such as erroneous jury instructions. Although our holding in this case is based, in part, on our conclusion that the jury instruction regarding ineffective consent raised the possibility that the verdict was based on an alternative means of establishing guilt not supported by legally sufficient evidence, it is undisputed that there was legally sufficient evidence of the other alternative of establishing guilt and, thus, the error in this case is trial error. Accordingly, the double jeopardy clause does not bar retrial on the means of establishing guilt for which there was sufficient evidence presented at trial.
The defendant in Jones was convicted of five counts of sexual assault including (1) one count of sexual assault in the second degree, HRS § 707-731(l)(a) (1993); (2) one count of attempted sexual assault in the second de
(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 unable 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 improvident consent is sought to be prevented by the law defining the offense [Ground 3]; or
(4) It is induced by force, duress or deception [Ground 4].
Id. at 168,
As a result, Jones was faced with the issue of “whether the ineffective consent instruction constituted reversible error where it is possible that the jury found [the defendant guilty based upon one of the grounds of ineffective consent, despite the prosecution’s failure to meet its burden of proof as to that ground.” Id. at 178,
Jones concluded that “[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.” Id. at 181,
C.
The ICA’s determination that the evidence was sufficient to sustain Petitioner’s conviction, Kalaola,
The difference between trial error and insufficiency of the evidence serves to distinguish the instant case from others in which this court has remanded for a new trial. In Arceo, the defendant was charged with, and convicted of, two counts of sexual assault.
In discussing the specific incidents of sexual penetration and sexual contact that the minor witness testified to, Arceo plainly identified each distinct act that could have been charged as a separate count, stating that the minor witness testified
that, during the time period charged in the indictment, [the defendant] subjected him to jive separate and distinct acts of sexual penetration—twice by inserting his finger into the [minor witness’s] anus (on each occasion, in the shower located in the shelter), once by inserting his penis into the [minor witness’s] anus (while the [minor witness] was sleeping on the bed provided by the shelter), and twice by performing fellatio upon the [minor witness] (also while the [minor witness] was in the bed)—and two separate and distinct acts of sexual contact—once by placing his penis on the [minor witness’s] penis (while the [minor witness] was in the bed) and once by placing his penis on the [minor witness’s] back (also while the [minor witness] was in the bed)[.]
Id. at 23,
Arceo further explained that “the prosecution stipulated that the indictment returned against [the defendant] in this сase covered ‘all alleged sexual assaults of the [minor witness] by [the defendant] during the specified period while they were living on Maui.’ ” Id. at 24,
(1) that [the defendant] subjected the [minor witness] to sexual penetration (i.e., the prohibited conduct, to wit, anal intercourse, fellatio, or the intrusion of [the defendant’s] finger into the [minor witness’s] anal opening); (2) that [the defendant] was aware that he was doing so (i.e., the requisite knowing state of mind with respect to the actor’s conduct); and (3) that the [minor witness] was less than fourteen years old at the time of the sexual penetration (i.e., the attendant circumstance of the [minor witness’s] age).
(1) that [the defendant] subjected the [minor witness’s] to sexual contact (i.e., the prohibited conduct, to wit, the touching of the [minor witness’s] back with [the defendant’s] penis or the touching of the [minor witness’s] penis with [the defendant’s] penis); (2) that [the defendant] was aware that he was doing so (i.e., the requisite knowing state of mind with respect to the actor’s conduct); (3) that [the defendant] was aware that the [minor witness] was not married to him (i.e., the requisite knowing state of mind with respect to the attendant circumstance implicit in “sexual contact,”); and (4) that the [minor witness] was less than fourteen years old at the time of the sexual contact (i.e., the attendant circumstance of the [minor witness’s] age).
Id. at 15,
Arceo observed that remand was based on “ ‘trial error’ and [on the fact that] the evidence adduced at trial was clearly sufficient to support [defendant’s] eonvictions[.]” Id. at 33 n. 40,
Thus, Arceo stated that, “[b]ecause our disposition of the present appeal is grounded in ‘trial error’ and the evidence adduced at trial was clearly sufficient to support [the defendant’s] convictions, double jeopardy concerns arp not implicated by a new trial.” Id. at 33 n. 40,
Furthermore, Arceo allows the prosecution an opportunity to present evidence of multiple acts to the jury under separate counts or elect the specific act to be relied upon for the charged offense. Arceo,
State v. Mundon,
The failure to give a unanimity instruction in Mundon would have amounted to trial error requiring remand. However, remand in that case would have raised double jeopardy concerns because the jury “was never informed which act committed by Mundon coincided with [which] counts!.] ” Id. (emphasis in original). The inability to ascertain which act corresponded to the appropriate count meant it was possible that if the case were remanded, the defendant could be retried for a count of TT1 for which he had been, in fact, acquitted by the jury. This would have violated his right not to be prosecuted for the same offense twice. Id. at 355,
As discussed previously, similar concerns are present in the instant case. It is impossible to know for which multiple acts the jury convicted Petitioner. The presence of substantial evidence as to one of the two acts does not sufficiently guarantee that Petitioner would not be subjected to the risks double jeopardy was intended to avoid. If this court were to remand for a new trial, it is possible that Petitioner could be retried for conduct the jury had rejected as a basis for legal liability in the first trial. The prosecution could have resolved these ambiguities by electing a particular act or by alleging particular acts in separate counts. Accordingly, in my view, the conviction must be reversed.
VIII.
The majority concludes that there was not substantial evidence to support Petitioner’s conviction for Petitioner’s actions upstairs at ATM. However, the majority would have this еase remanded for a new trial on the act that occurred downstairs. The majority argues that 1) this opinion’s reading of Arceo is incorrect, majority opinion at 60-62,
Because the prosecution correctly charged [the 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.
Jones,
A.
The majority’s first argument is that, in Arceo, “[t]here is no indication that this court concluded, based on [the minor witness’s] equivocal testimony, that there was substantial evidence to support” each of the multiple acts. Majority opinion at 61-62,
However, in Arceo, as indicated supra, the prosecution adduced substantial evidence of multiple acts underlying each count to support the defendant’s conviction. The discussion in Arceo of the minor witness’s testimony related largely to 1) the defendant’s argument that the prosecution should be limited to presenting evidence of a single incident for each count and testimony of other bad acts should be excluded, and 2) the prosecution’s counter-argument that the defendant’s sexual assaults constituted a continuing offense requiring the admission of all the instances of sexual assault. Arceo,
Hence, the majority’s reference to the specific numerous acts alleged by the minor witness in Arceo as “equivoeal[,]” majority opinion at 61-62,
This court has repeatedly explained that on appeal, the standard of review is not whether the evidence would satisfy a trier of fact beyond a reasonable doubt, but rather, whether the record contains substantial evidence. See State v. Hicks,
B.
The majority’s second argument is that Jones should control the outcome of this case because, after determining that there was insufficient evidence to support the defendant’s conviction for one of two alternative means relating to the element of consent, Jones remanded for a new trial on the other alternative means. Majority opinion at 58,
To reiterate, in Jones, this court determined that it was “trial error” for the court to have submitted the instruction regarding ineffective consent to the jury.
In explaining the various justifications for the prohibitions against double jeopardy, the majority quotes this court’s statement in State v. Quitog,
Additionally, the majority asserts that remand in Jones raises the same concern “ ‘that the jury may have acquitted’ the defendant in Jones of the alternative means” for which there was sufficient evidence. Majority opinion at 60 n. 11,
With respect to whether the statutory alternatives in this ease may be treated as alternative means, it is not significant that the jury may have reached different conclusions regarding whether [the c]om-plainant did not consent or any apparent consent was ineffective, i.e., meaningless, because such differences do not reflect disagreement as to the specific incident charged.
Id. at 176,
Hence, in Jones, remand was appropriate because there was no risk that the defendant would be retried for acts for which the defendant might have been acquitted by the jury. There, the jury’s verdict manifested that it found the defendant was guilty of the separately charged acts of sexual assault. In other words, there was no question as to the commission of the underlying acts, and thus, remand did not present any risks to the
But in Petitioner’s ease, there is no way to know how the jury decided as to each of the multiple acts presented to it under the one count charged. If this court remands the instant case for a new trial on the act supported by substantial evidence, there is a genuine possibility that the jury may have acquitted Petitioner of the act that would be remanded pursuant to the majority’s approach.
Also, the majority attempts to relate the facts in Petitioner’s ease to trial error in Jones, stating that “it is undisputed that trial error occurred in the instant ease, insofar as the [court] failed to properly instruct the jury concerning (1) the statutory definition of ‘disorderly conduct’ and (2) the applicability of the ‘knowingly' state of mind to each element of the offense of failure to disperse.” Majority opinion 42 (citing Kalaola,
The basis for reversal here is not trial error, but rather, the double jeopardy concerns discussed supra. The conclusion that one of the underlying acts was not supported by substantial evidence did not result from any trial error by the court, and is in no way related to the conclusion that trial error occurred because the jury was not properly instructed as to the statutory definition of “disorderly conduct” or the “knowingly” state of mind. Here, the trial error recognized by the ICA has no connection to double jeopardy concerns or substantial evidence.
The majority’s third argument is that this opinion extends double jeopardy protections beyond what is set forth in Hawai'i and federal case law. At the outset it should be noted that all of the cases cited by the majority are inapposite inasmuch as they do not address the situation where one of the underlying acts in a multiple acts case is not supported by substantial evidence. The majority’s assertion that the extension of double jeopardy protections to Petitioner “is without support in [Hawai'i] case law,” majority opinion at 55-56 n. 9,
Relying on State v. Feliciano,
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Id. (emphasis added). See also Ball v. United States,
The majority quotes this same language to support its argument that double jeopardy protections should only be extended where there has been an acquittal in some form. Majority opinion at 51-52,
The majority mentions the Supreme Court’s decision in Burks, majority opinion at 57,
The result for which this opinion advocates does nothing to undermine the protections that either Burks or Hawai'i law have thus far afforded defendants. But rather, greater protection is afforded to Petitioner under Hawai'i law than that required by federal law. See, e.g., Mundon,
The majority cites State v. Bannister;
Although Bannister does involve sufficiency of the evidence for a single act, it does not in any way address the issue of insufficiency of evidence where multiple acts are present as in the instant case. Furthermore, the majority’s citation to Bannister highlights a failure to recognize that in multiple acts cases, the presence of sufficient evidence as to the remaining acts is not enough to address the uncertainty that arises when it is unclear what the jury decided as to the other act. In other words, despite there being sufficient evidence as to one of the multiple acts, there is no way of knowing what the jury decided as to those acts. The prosecution’s failure to prove its case with regard to all of the underlying acts, and the attendant concern that Petitioner may be retried for an act for which the jury may have decided he was not guilty, is what distinguishes this case from Bannister and the other cases cited by the majority.
For that same reason, the majority’s citation to United States v. Tateo,
The majority also argues that, in contrast to Mundon, Petitioner in the instant case “was never acquitted by a jury for either of the two alleged acts of failure to disperse.” Id. at 56,
However, Mundon could not be vacated and remanded for a retrial as to the count of which he was convicted because “[t]he language of the indictment as to each count was identical.” Id. at 354,
As noted before, the majority argues that because “there was no express jury verdict of
Furthermore, the cases cited by the majority are inapposite. Quitog dealt with issues entirely unrelated to those in the instant appeal, stating that “the outcome of the present appeal turns neither on the ‘legal sufficiency of the evidence’ to support [the defendant’s] attempted second degree murder conviction nor on the presence of ‘trial error,’ as that term was contemplated in Burks and Wallace!.]” Quitog,
The majority concedes that the cases it cites regarding implied acquittals are inappo-site. However, the majority concludes that these cases “support[ ] the inference that the doctrine of implied acquittals does not extend to the circumstances of the instant case.” Majority opinion at 55-56 n. 9,
The majority also cites to the decision of the ICA in State v. Pesentheiner,
However, the ICA remanded for a new trial, stating that “[t]he court’s erroneous assumption that recklessness was sufficient for conviction rendered it unnecessary, under that assumption, to go further in considering the evidence than a finding that [the defendant] recklessly waved his arms[,]” and that if “the court applied the correct mens rea standard in its consideration of the evidence, it would have been further required to assess the weight and credibility of [the police officer’s] description of the actus reus." Id. at 301,
However, Pesentheiner does not add any weight to the majority’s contention that express findings should be made before double jeopardy bars retrial inasmuch as Pesen-theiner did not purport to resolve the issues specific to the instant ease. The fact that the trial court failed to make an adequate finding with regard to the defendant’s mental state presents a completely different situation. In Pesentheiner, the ICA was able look to the record to determine exactly on what basis the trial court rested its decision to convict. The ICA concluded that the trial court’s findings, although not sufficient to convict, were not inconsistent with guilt. Id. In contrast, the record in the instant case does not provide any indication as to what the jury decided with regard to the remaining act. It may have found him guilty of the act or it may have concluded he was not guilty. In other words, there is no assurance, in contrast to Pesentheiner, that retrial would not place Petitioner in jeopardy of being tried for an act for which the finder of fact determined he was not guilty.
Another plain distinction between Pesen-theiner and the instant case is the ICA’s correct determination that the error in Pes-entheiner was “trial error, as [opposed to] evidentiary insufficiency” and, thus, did “not constitute a decision to the effect that the
The majority also quotes Professor La-Fave to the effect that, while assessing “ ‘the impact of a trial error always presents uncertainties, whether the result is a conviction or acquittal, only in the latter situation is there concrete evidence, in the form of a not guilty verdict, that the jury may have resolved factual issues in favor of the defendant’s innocence.’ ” Majority opinion at-,
D.
The majority maintains that because there was neither an express acquittal nor a conviction on a lesser included offense, there cannot be certainty that the jury did, in effect, acquit Petitioner of any acts. Majority opinion at 55,
IX.
A.
Finally, the majority notes that on appeal to the ICA Petitioner requested that his case be remanded for a new trial on the acts supported by substantial evidence as opposed to the reversal granted by this court. Majority opinion at 51,
The Supreme Court’s decision in Burks employed a similar’ rationale. The petitioner in Burks was charged with bank robbery, and his main defense at trial was that he was insane and was “substantially incapable of conforming his conduct to the requirements of the law.”
Burks ultimately rejected the sixth circuit’s conclusion, holding that “[t]he [d]ouble [j]eopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Id. at 11,
As discussed supra, double jeopardy is exactly the type of substantial right noticeable as plain error. See Miyazaki,
B.
The majority’s conceptual concerns are unwarranted because the prosecution is in a position, and has been since before Arceo was decided, to avoid this problem by either 1) presenting each act as a separate charge or 2) electing the specific act upon which it is seeking a conviction. See Arceo,
requiring either a unanimity instruction or an election “is not intended to ... encourage the bringing of multiple charges when, in the prosecutor’s judgment, they are not warranted. The criteria used to determine that only a single charge should be brought[ ] may indicate that the election of one particular act for conviction is impractical.”
Majority opinion at 62 n. 14,
X.
For the foregoing reasons, I would reverse the ICA’s June 26, 2009 judgment and the court’s April 18, 2008 judgment, and remand to the court to enter a judgment of acquittal.
.HRS § 711-1102 states as follows:
Failure to disperse. (1) When six or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, a law enforcement officer may order the participants and others in the immediate vicinity to disperse.
(2) A person commits the offense of failure to disperse if the person knowingly fails to comply with an order made pursuant to subsection (1).
(3) Failure to disperse is a misdemeanor.
(Emphases added.)
. The SDO was filed by Presiding Judge Daniel R. Foley and Associate Judges Craig H. Nakamu-ra and Alexa D.M. Fujise.
. The Honorable Reynaldo D. Graulty presided.
. The transcript refers to the officer as Officer Alapa, whereas the index to the transcript refers to him as Officer Olapa. Both of the parties used the surname “Alapa” in their briefs. Therefore, for the sake of consistency, this opinion also refers to him as “Officer Alapa.”
. A general unanimity instruction is one that instructs the jury that it must be unanimous as to the general verdict of guilty or not guilty on a particular count. See State v. Apao,
. Also, Respondent did not file an application for certiorari from the ICA judgment remanding to the court to instruct the jury on the definition of disorderly conduct.
. As discussed further infra, the statutory alternatives presented in Jones related to two different means by which the prosecution could negative the defense of consent to several of the charges of sexual assault.
. In the answering brief, Respondent mistakenly asserts that the above citation is to the commentary to HRS 711-1102. The citation, however, is to the statute "case notes.” Case notes are not recognized authority on statutory interpretation.
The commentary on HRS 711-1102 actually states:
This section provides a procedure under which a peace officer can order a group of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm to disperse. A similar order may be made to others in the immediate vicinity. Failure to obey such an order is a misdemean- or. The offense is thus an aggravated form of disorderly conduct which does not reach the point of riot or unlawful assembly.
Previous Hawaii law contained a somewhat similar section allowing an order to disperse after "force of violence has been used disturbing the public peace.”
. Article I, section 10 of the Hawai'i Constitution states in pertinent part as follows:
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy....
. It should be noted that the law regarding testimony on dates, times, and places is a separate area of law and does not relate to the sufficiency of the evidence. The majority portrays the minor witness's testimony as “equivocal,” majority opinion at 61-62,
. The majority's statement that, in Arceo, the prosecutor's stipulation as to the counts including all acts was to "avoid double jeopardy” concerns in that case has no bearing on whether substantial evidence supported each act. Majority opinion at 61 n. 12,
With all due respect, the majority further confuses the matter by asserting that “this court's discussion [of Arceo ] identified only five types of conduct rather than seven individual acts.” Majority opinion at 61 n. 12,
(1) twice inserted his finger into the Minor's "butt" while the Minor was taking a shower; (2) inserted his penis into the Minor's "butt” while the Minor was sleeping on the bed provided by the shelter; (3) twice performed fellatio upon the Minor; (4) placed his penis on the Minor’s penis while the Minor was on the bed; and (5) placed his penis on the Minor’s back while the Minor was either on the bed or the floor of the "bedroom.”
Arceo,
. In the instant case there was no trial error related to the sufficiency of the evidence to support each act underlying the count of failure to disperse. See discussion infra. As the majority’s quotation of Burks explains, trial error indicates that the "judicial process” was "defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.” Majority opinion at 57,
. Referring to Jones, the majority maintains that this opinion "does not explain why requiring a nexus between trial error and insufficiency of the evidence is necessary[J” Majority opinion at 59 n. 10,
. The majority states that Jones remanded the alternative means with respect to lack of consent for retrial “despite the fact that there was 'a genuine possibility that the jury may have acquitted' the defendant" based on the remaining alternative means. Majority opinion at 60 n. 11,
. The majority avers that the instant case cannot be distinguished from Jones, because in Jones, "there was no basis by which to confirm the jury's verdict as to each alternative means[,]” but this court "nevertheless remanded the defendant's case for retrial on the alternative means that was supported by sufficient evidence[,]" majority opinion at 60 n. 11,
It cannot be disputed that there was no doubt in Jones as to the juiy’s verdict regarding the underlying act supporting conviction. Rather, the doubt in that case stemmed from uncertainty as to whether the jury convicted on the basis of the erroneous instruction or the instruction supported by substantial evidence. In State v. Nichols,
. The majority asserts that this opinion "discount[s] the presence of trial error in this case by apparently contending that the disposition in Jones is proper only where insufficiency of the evidence occurs as a direct result of trial error[.]" Majority opinion at 59 n. 10,
. Additionally, the majority maintains that "the instant case does not 'hinge on’ insufficiency of the evidence to any greater extent than Jones." Majority opinion at 59 n. 10,
. This court has stated on numerous occasions that "we are not precluded from interpreting our state constitution to afford greater protection than that required by federal constitutional interpretations and have not hesitated to do so where warranted by logic and due regard for the purposes of those protections.” Housing Fin. and Dev. Corp. v. Castle,
. Thus, the majority contends that, "so long as there was sufficient evidence to support a conviction, double jeopardy bars retrial only when there was an acquittal, express or implied.” Majority opinion at 59 n. 10,
However, double jeopardy concerns raised by uncertainty as to the jury's decision on the remaining act in this case should bar remand. Moreover, the prosecution was in a position to avoid such concerns by charging each count separately or electing the specific act upon which the conviction is based.
. The majority agrees that fedеral precedent does not prevent this court from extending broader double jeopardy protections in the instant case. Majority opinion at 52 n. 7,
.In Whiting, the defendant was charged with murder in the second degree, but the jury convicted him of the lesser included offense of manslaughter due to extreme mental or emotional disturbance (EMED manslaughter).
. In Loa, the trial court instructed the jury that it could convict the defendant of attempted first degree murder or a lesser included offense of attempted reckless manslaughter.
. The majority maintains that "this court has repeatedly recognized that, as long as there was sufficient evidence presented to support the conviction of the defendant for the charged offense,
Concurrence Opinion
Concurring and Dissenting Opinion by