State v. Abellira

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-MAY-2021
07:52 AM
Dkt. 61 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
LYDA J. ABELLIRA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Lyda J. Abellira (Abellira) appeals
from the Judgment of Conviction and Probation Sentence
(Judgment), entered on December 4, 2018, in the Circuit Court of
the First Circuit (circuit court).1/ After a jury trial, Abellira
was convicted of Assault in the Third Degree, in violation of HRS
§ 707-712,2/ and Terroristic Threatening in the First Degree

1/
The circuit court entered an Amended Judgment of Conviction and
Probation Sentence (Amended Judgment) on December 13, 2018, following
Plaintiff-Appellee State of Hawaii's (State) post-judgment Motion to Modify
Probation to Add Term and Condition. Abellira's notice of appeal is deemed to
appeal from the Amended Judgment. See Hawai #i Rules of Appellate Procedure
Rule 4(a)(3). The Honorable Shirley M. Kawamura presided over the trial, as
well as entry of the Judgment and the Amended Judgment.
2/
HRS § 707-712 (2014) provides, in relevant part:
(1) A person commits the offense of assault in the third
degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(TT1), in violation of HRS § 707-716(1)(e).3/
On appeal, Abellira raises a single point of error,
contending that the circuit court erred in instructing the jury
on the TTI charge by failing to give a specific unanimity
instruction regarding the persons threatened.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Abellira's point of error as follows, and vacate the Judgment and
the Amended Judgment as to Abellira's conviction for TT1.
We first note that Abellira failed to object to the
alleged deficiency in the jury instructions at trial. "As a
general rule, jury instructions to which no objection has been
made at trial will be reviewed only for plain error. An error
will be deemed plain error if the substantial rights of the
defendant have been affected adversely." State v. Sheffield, 146
Hawai#i 49, 53, 456 P.3d 122, 126 (2020) (quoting State v.
Henley, 136 Hawai#i 471, 478, 363 P.3d 319, 326 (2015)).

[A]lthough as a general matter forfeited assignments of
error are to be reviewed under Hawai#i Rules of Penal
Procedure (HRPP) Rule 52(b) plain error standard of review,
in the case of erroneous jury instructions, that standard of
review is effectively merged with the HRPP Rule 52(a)
harmless error standard of review because it is the duty of
the trial court to properly instruct the jury. As a result,
once instructional error is demonstrated, we will vacate,
without regard to whether timely objection was made, if
there is a reasonable possibility that the error contributed
to the defendant's conviction, i.e., that the erroneous jury
instruction was not harmless beyond a reasonable doubt.

3/
HRS § 707-716 (2014) provides, in relevant part:
(1) A person commits the offense of terroristic threatening
in the first degree if the person commits terroristic
threatening:
. . . .
(e) With the use of a dangerous instrument. . . .

HRS § 707-715 (2014) states, in relevant part:
A person commits the offense of terroristic threatening if
the person threatens, by word or conduct, to cause bodily
injury to another person . . . :

(1) With the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another
person[.]

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State v. Malave, 146 Hawai#i 341, 348, 463 P.3d 998, 1005 (2020)
(original brackets omitted) (quoting State v. Nichols, 111
Hawai#i 327, 337, 141 P.3d 974, 984 (2006)).
Relying on State v. Auld, 114 Hawai#i 135, 157 P.3d 574
(App. 2007), Abellira contends that "the circuit court reversibly
erred in failing to instruct the jury with a specific unanimity
instruction regarding the person(s) threatened, and as a result
there was a genuine possibility that the jurors were not
unanimous as to the person(s) threatened." Abellira
acknowledges:

The trial court instructed the jury with a general
unanimity instruction . . . [which] instruct[ed] the jury
"that they must be unanimous as to the verdict." Auld, 114
Hawai#i at 139, 157 P.3d 578. This is in contrast to a
specific unanimity instruction which instructs the jury that
"all twelve of its members must agree that the same
underlying criminal act has been proved beyond a reasonable
doubt." Id.

(Some citations omitted.) Abellira argues that, here, the
circuit court instructed the jury that the State had to prove
beyond a reasonable doubt that Abellira "threatened and had the
intent to terrorize Timothy and/or E#olu#i and/or E#le#a and/or
Nalani and/or Kim."4/ Abellira concludes that "[w]ithout a
specific unanimity instruction as to the person(s) threatened[,]
each of the twelve jurors could have based his or her
determination of guilt on a finding of no less than 31 different
victim alternatives."
We conclude that with respect to the TT1 charge, the
circuit court plainly erred in failing to give a specific
instruction requiring unanimity as to the person(s) threatened.
In Auld, this court ruled that a unanimity requirement
"applies as much (a) to the person(s) threatened as it does (b)
to the threatening conduct." 114 Hawai#i at 142, 157 P.3d at
581. There, the defendant was charged with two counts of TT1
(Counts One and Five). Id. at 136, 157 P.3d at 575. At trial,
the prosecution adduced evidence of several persons that the
defendant had threatened, as well as multiple acts by the

4/
The complaining witnesses in this case are Timothy Kwan Rodrigues
(Timothy), E#olu#i Ilae (E#olu#i), E#le#a Ilae (E#le#a), Relina "Nalani" Agbayani-
Ho Ching (Relina), and Kim Ilae (Kim).

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defendant, that served as the basis for the two TT1 counts. Id.
at 136–37, 157 P.3d at 575–76. No specific unanimity instruction
was given regarding which persons were threatened in which count,
and the jury convicted the defendant on both TT1 counts. Id. at
136, 138, 157 P.3d at 575, 577. In vacating the defendant's
convictions, this court reasoned that the jury instruction at
issue

states that one of the elements of Count One is that Auld
terroristically threatened Salina, Kiana " and/or" Liane,
thus permitting the jury to decide that Auld terroristically
threatened Salina, Kiana, or Liane. Without any instruction
requiring unanimity as to the person(s) threatened, each of
the twelve jurors could have based his or her determination
of guilt on a finding of [seven] victim alternatives. . . .
Allowing each juror seven choices and not requiring all
jurors to agree on no less than one violates the rule
requiring a unanimous jury regarding the person(s)
threatened, which was necessary to prove the offense
charged.

Id. at 143–44, 157 P.3d at 582–83 (emphasis added). "In other
words, because there was a possibility that the conviction
resulted from different jurors concluding that the defendant
committed a specific act, but with respect to different persons,
there was no way to determine whether the jury produced a
unanimous verdict with respect to the person or persons against
whom each crime was committed." State v. Mundon, 121 Hawai#i
339, 354, 219 P.3d 1126, 1141 (2009) (construing Auld).
Accordingly, the ICA vacated the TT1 convictions and remanded for
a new trial. Auld, 114 Hawai#i at 145, 157 P.3d at 584.
Here, the circuit court's jury instructions for TT1
required the jury to determine, among other things, that Abellira
threatened to cause bodily injury to "TIMOTHY KWAN-RODRIGUES
and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANI-HO
CHING and/or KIM ILAE" with the intent to terrorize or in
reckless disregard of the risk of terrorizing "TIMOTHY KWAN-
RODRIGUES and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA
AGBAYANI-HO CHING and/or KIM ILAE."5/

5/
The jury was instructed in relevant part as follows:
In Count II of the Indictment, the Defendant, LYDA J.
ABELLIRA, is charged with the offense of Terroristic
Threatening in the First Degree.
(continued...)

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5/
(...continued)
This offense can be committed in either of two ways:
Terroristic Threatening in the First Degree (Intent to
Terrorize) or Terroristic Threatening in the First
Degree(Reckless Disregard of Terrorizing).
Intent to Terrorize
As to the first alternative, a person commits the
offense of Terroristic Threatening in the First Degree
(Intent to Terrorize) if, with the intent to terrorize
another person, she threatens, by word or conduct, to cause
bodily injury to another person with the use of a dangerous
instrument.
There are four material elements of the offense of
Terroristic Threatening in the First Degree (Intent to
Terrorize), each of which the prosecution must prove beyond
a reasonable doubt.
These four elements are:

1. That, on or about September 1, 2017, in the City
and County of Honolulu, the Defendant threatened, by word or
conduct, to cause bodily injury to TIMOTHY KWAN-RODRIGUES
and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANI-
HO CHING and/or KIM ILAE; and

2. That the Defendant did so with the intent to
terrorize TIMOTHY KWAN-RODRIGUES and/or E#OLU#I ILAE and/or
E#LE#A ILAE and/or RELINA AGBAYANI-HO CHING and/or KIM ILAE;
and

3. That the Defendant did so with the use of a
dangerous instrument; and

4. That the Defendant acted intentionally as to
element 3.
Reckless Disregard of Terrorizing

As to the second alternative, a person commits the
offense of Terroristic Threatening in the First Degree
(Reckless Disregard of Terrorizing) if, in reckless
disregard of the risk of terrorizing another person, she
threatens, by word or conduct, to cause bodily injury to
another person with the use of a dangerous instrument.
There are four material elements of the offense of
Terroristic Threatening in the First Degree (Reckless
Disregard of Terrorizing), each of which the prosecution
must prove beyond a reasonable doubt.
These four elements are:

1. That, on or about September 1, 2017, in the City
and County of Honolulu,the Defendant threatened, by word or
conduct, to cause bodily injury to TIMOTHY KWAN-RODRIGUES
and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANI-
HO CHING and/or KIM ILAE; and
2. That the Defendant did so in reckless disregard of
the risk of terrorizing TIMOTHY KWAN-RODRIGUES and/or E #OLU#I
ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANI-HO CHING
(continued...)

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In addition, the State told the jury during closing argument:

Then going onto the terroristic threatening. Now -- oh, and
I'm sorry, with regard to the Assault 2, there was one act.
There was one act only. You guys don't have to figure out
which one. It's the act where she swung and she hit Timothy.
That's simple. There were a couple times where she swung at
Eolui and then there was the time that she reversed the van
into five of the people there or towards five of the people
there. That's the part with the instruction talking about
different acts can be the basis for it.

So, item one, if you . . . unanimously agree that she
did take a swing or two at Eolui, at his head, fortunately
didn't hit him, chain's still a dangerous instrument.
That's a TT1 there, which because every -- remember, the
list of people, we don't have to prove all beyond a
reasonable doubt, just one of them, and/or, and/or, and/or,
and/or, but there is the second incident. She did reverse
her van into the area where the five were there. Mom was
quite clear about who was there and, again, she even came
out, simply because she was worried about everyone else, so
she's paying attention to that.

As in Auld, the jury instructions for TT1 impermissibly
allowed each juror numerous choices, involving five complaining
witnesses, and did not require all jurors to agree on no less
than one complaining witness. 114 Hawai#i at 143-44, 157 P.3d at
582-83. In its closing argument, the State advocated for a
guilty verdict on the TT1 charge based on the same "and/or"
language in the jury instructions.
The State contends that "no victim-specific unanimity
instruction" was required because a specific unanimity
instruction was given with respect to the acts committed by
Abellira6/, and "there was no chance of jury confusion" as to "the
victim(s) of each act" underlying the TT1 count. The State
argues that "[i]nsofar as Eolui was identified as the victim for

5/
(...continued)
and/or KIM ILAE; and
3. That the Defendant did so with the use of a
dangerous instrument; and

4. That the Defendant acted recklessly as to element
3.
6/
The jury was instructed as follows:

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.

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the act of swinging the chain," there was no chance of jury
confusion as to the victim of that act. As to the act of
reversing the van, the State argues that "[b]ased on the evidence
presented, Eolui, Tim, Elea, and Relina were standing together as
a group[,]" and "it would have been impossible to reverse towards
one person and not the others[.]"
The State's argument only highlights the jury unanimity
issue here. Given the ambiguous "and/or" language of the TT1
jury instructions and the absence of a threatened-person-specific
instruction, each juror could have had a different view of which
complaining witness Abellira terroristically threatened and could
have based his or her determination of guilt on a finding of
numerous alternatives. The fact that one of the alternatives
involved a specific alleged act and complaining witness (the
swinging of the chain as to E#olu#i) does not resolve the problem,
as it is possible that the jury did not unanimously agree on this
alternative, given the availability of numerous other
alternatives involving the reversing of the van. As to the
latter act, there was varying testimony at trial as to which
complaining witnesses were part of the "group" in the path of the
van and where each complaining witness was standing during the
relevant time period.7/
On this record, we cannot conclude that the omission of
a threatened-person-specific unanimity instruction was harmless
beyond a reasonable doubt. As a result, we conclude that when
read and considered as a whole, the instructions given were
prejudicially insufficient and erroneous, and the judgment of
conviction as to the TT1 charge must be set aside.
Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Probation Sentence and the Amended Judgment of

7/
For example, Timothy testified that if he had not moved off the
road, he would have been hit by the van. Barbara Pascua, a witness to the
incident, testified that Abellira put the van in reverse and "swerved the
vehicle in the direction of" E#olu#i and his girlfriend (Relina). E#olu#i
testified that his mother (Kim), his sister (E #le#a), and his girlfriend
(Relina) had to get out of the way of the van's path, but that he did not.
When asked who was in the area when Abellira was reversing, E #le#a responded,
"[m]e, Relina, Eolui, my mom [Kim], and I think Tim but I'm not too sure."
Relina testified that she, E#olu#i, E#le#a, and Kim were all standing in the
same area and had to run out of the way of the van, but could not remember if
Timothy was there.

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Conviction and Probation Sentence, entered on December 4 and 13,
2018, respectively, in the Circuit Court of the First Circuit,
are vacated only as to Count Two, Terroristic Threatening in the
First Degree. The case is remanded to the circuit court for a
new trial on Count Two, with instructions to provide the jury
with a specific unanimity instruction as to the person(s)
threatened, and for further proceedings consistent with this
summary disposition order.

DATED: Honolulu, Hawai#i, May 5, 2021.

On the briefs:
/s/ Katherine G. Leonard
Taryn R. Tomasa, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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