Summary
The Supreme Court of Hawaiʻi reviewed whether the trial court was required to give a specific unanimity instruction where the prosecution presented multiple threats and acts of restraint in a single criminal episode. The court held that the charged offenses could be proved as continuing offenses and that a specific unanimity instruction was not required because the prosecution presented the conduct as one uninterrupted course of conduct. The court reversed the Intermediate Court of Appeals and affirmed the defendant’s convictions and sentence.
Topics
Practice areas
Questions Presented
- Whether a specific unanimity instruction was required when multiple threats allegedly supported a single charge of second-degree terroristic threatening.
- Whether a specific unanimity instruction was required when multiple acts of force and threats allegedly supported a single charge of kidnapping or its lesser included offense of second-degree unlawful imprisonment.
- Whether the ICA could decide the terroristic-threatening unanimity issue without the transcript of the complaining witness's testimony.
- Whether the charged offenses could be proved as continuing offenses under Hawaiʻi law.
Holdings
- A defendant's conduct may constitute either separate and distinct culpable acts or an uninterrupted continuous course of conduct, but not both. A specific unanimity instruction is not required when the offense may be proved as a continuing offense and the prosecution alleges, presents evidence of, and argues that the defendant's actions constituted a continuous course of conduct.
- The multiple threats supporting Apao's second-degree terroristic-threatening conviction constituted one continuing, uninterrupted course of conduct, so the trial court was not required to give a specific unanimity instruction.
- The multiple acts of force and threats used to restrain Perez constituted one continuous course of conduct supporting second-degree unlawful imprisonment, so a specific unanimity instruction was not required.
- An appellate court lacks a basis to decide the merits of an alleged error when the record omits testimony essential to resolving the issue; however, supplementation of the record may cure that deficiency.
Key quotations
“Based on the foregoing, we hold that Apao's conduct can either represent "separate and distinct culpable acts" or an uninterrupted continuous course of conduct, but not both.” (24 P.3d at 39)
“We also hold that a specific unanimity instruction is not required if (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's actions constituted a continuous course of conduct.” (24 P.3d at 39)
“Based on the foregoing, we vacate the ICA opinion and affirm the judgment of the first circuit court.” (24 P.3d at 43)
Factual background
Apao confronted his former girlfriend, Paulette Perez, at a Kaneʻohe bus stop after learning that she had begun a relationship with another man. He repeatedly threatened and assaulted her, forced her into a vehicle, transported her to another residence, and continued using force and threats to restrain her until police arrived and she escaped. The prosecution presented the threats and restraints as one uninterrupted course of conduct arising from a single impulse and plan.
Procedural history
Following separate jury trials, Apao was convicted of second-degree terroristic threatening and second-degree unlawful imprisonment, a lesser included offense of kidnapping. The Intermediate Court of Appeals held that specific unanimity instructions were required because the prosecution presented multiple threats and restraints that could independently support the charged offenses, and it vacated the convictions and sentence. The Supreme Court of Hawaiʻi granted the State's application for certiorari, vacated the ICA opinion, and affirmed the circuit court judgment.