State v. Pasion

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-OCT-2022
07:51 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
CONCEPCION C. PASION, Defendant-Appellant

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

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

Defendant-Appellant Concepcion Pasion, aka Cyryna

Pasion (Pasion), appeals from the Judgment of Conviction and

Sentence; Notice of Entry (Judgment) entered by the Family Court

of the First Circuit (Family Court) on October 24, 2018.1 After

a jury trial, Pasion was found guilty of violating an October 2,

2017 Order for Protection (Order for Protection) in violation of

Hawaii Revised Statutes (HRS) § 586-11(a) (Supp. 2017) and was

1
The Honorable Rowena A. Somerville presided.
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sentenced pursuant to HRS § 586-11(a)(2)(A).2 Pasion was

sentenced to two years of probation, with thirty days of

imprisonment.

Pasion raises three points of error on appeal,

contending that the Family Court: (1) plainly erred by

presenting the jury with a defective violation of an order for

protection elements instruction, in violation of Pasion's due

process and fair trial rights; (2) plainly erred in (a)

concluding that the requirements of HRS § 586-11(a)(2)(A)

constituted sentencing factors, rather than elements of the

offense which were required to be proven to the jury beyond a

reasonable doubt, in violation of State v. Auld, 136 Hawai#i 244,

361 P.3d 471 (2015); and (b) failing to colloquy Pasion about

2
HRS § 586-11 states, in pertinent part:

§ 586-11 Violation of an order for protection . (a)
Whenever an order for protection is granted pursuant to this
chapter, a respondent or person to be restrained who
knowingly or intentionally violates the order for protection
is guilty of a misdemeanor. A person convicted under this
section shall undergo domestic violence intervention at any
available domestic violence program as ordered by the court.
The court additionally shall sentence a person convicted
under this section as follows:

. . . .

(2) For a second conviction for violation of the order
for protection:
(A) That is in the nature of non-domestic
abuse, and occurs after a first conviction
for violation of the same order that was
in the nature of non-domestic abuse, the
person shall be sentenced to a mandatory
minimum jail sentence of not less than
forty-eight hours and be fined not more
than $250; provided that the court shall
not sentence a defendant to pay a fine
unless the defendant is or will be able to
pay the fine[.]

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stipulating to the facts of her prior violation of an order for

protection conviction which would make Pasion eligible for

enhanced sentencing under HRS § 586-11(a)(2)(A); and (3) erred in

(a) granting Plaintiff-Appellee the State of Hawai#i (the

State's) Notice of Intent to Use Evidence of Pasion's April 2018

violation of an order for protection offense under Hawaii Rules

of Evidence (HRE) Rule 404(b) because the relevance was weak and

the prejudice far outweighed the probative value; and (b)

concomitantly denying certain evidentiary requests in Defendant's

Motion in Limine on the same basis.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, as well as the

relevant legal authorities, we resolve Pasion's points of error

as follows:

(1) Pasion argues that the Family Court's elements

instruction is impermissibly vague and circular because it failed

to identify the specific conduct in which Pasion engaged in

violation of the Order for Protection.

Erroneous jury instructions are subject to plain error

review "because it is the duty of the trial court to properly

instruct the jury." State v. DeLeon, 131 Hawai#i 463, 479, 319

P.3d 382, 398 (2014) (quoting State v. Nichols, 111 Hawai#i 327,

337, 141 P.3d 974, 984 (2006)). "As a result, once instructional

error is demonstrated, we will vacate, without regard to whether

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timely objection was made, if there is a reasonable possibility

that the error contributed to the defendant's conviction[.]" Id.

The Family Court's instructions to the jury stated, in

relevant part:
A person commits the Violation of an Order for
Protection if she intentionally or knowingly engages in
conduct prohibited by an order for protection issued by a
Judge of the Family Court that was then in effect.

There are four material elements of the offense of
Violation of an Order for Protection, each of which the
prosecution must prove beyond a reasonable doubt.

These four elements are:

1. That, on or about August 27th, 2018, an order
for protection issued by the Honorable Kevin T. Morikone of
the Family Court in FC-DA number 17-1-2281 pursuant to
Chapter 586 of the Hawaii Revised Statutes prohibiting the
defendant from engaging in certain conduct was in effect;
and

[2.] That, on or about ... August 27th, 2018, in the
City and County of Honolulu, State of Hawaii, [Pasion]
intentionally or knowingly engaged in conduct that was
prohibited by the order for protection; and

3. That [Pasion] knew at that time that such
conduct was prohibited by the order for protection; and

4. That [Pasion] was given notice of the order for
protection prior to engaging in such conduct by having been
present at the hearing in which the order was issued.

Pointing to element 2 of the instruction, Pasion argues

that "engaging in certain conduct" does not specify the act or

omission that Pasion allegedly committed, such as coming or

passing within 100 yards of the protected person's residence or

failing to continue to stay away from the residence at [] Nihi

Street, which are some of the acts prohibited in the seven-page

Order for Protection.

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The adequacy of a jury instruction is determined by

whether the instruction clearly and correctly specifies what the

jury must decide. See generally State v. Bovee, 139 Hawai#i 530,

540-42, 394 P.3d 760, 770-72 (2017) (discussing various Hawai#i

cases concerning the trial court's duty with respect to jury

instructions). Here, the Family Court's instruction failed to

clearly specify the prohibited conduct the jury was being asked

to determine. We conclude that the Family Court plainly erred by

failing to appropriately specify the particular conduct

prohibited by the Order for Protection that Pasion allegedly

violated.

However, we further conclude that there is no

reasonable possibility that the Family Court's error contributed

to Pasion's conviction. The only evidence presented concerning

the violation of the Order for Protection was evidence of

Pasion's presence at the protected person's home; that evidence

was uncontroverted. The protected person testified that she saw

Pasion at the home. Honolulu Police Department Officer Tuavao

Maiava (Officer Maiava) testified that he saw Pasion in the

carport of the protected person's home. And, Pasion testified

that she went to the protected person's home, despite knowing

that the Order for Protection prohibited her from doing so.3

Examining the Family Court's error in light of the entire

3
Pasion did not deny violating the stay-away order, but rather
raised a choice-of-evils defense, which the jury apparently rejected.

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proceedings, we conclude that the Family Court's error was

harmless beyond a reasonable doubt.

Pasion further argues that element 4 of the elements

instruction (set forth above) contained a factual finding that

the jury was required to make, which constituted a prohibited

comment on the evidence.4 We conclude that the Family Court's

instruction regarding element 4 of the offense did not constitute

a comment on the evidence, but instead properly stated an element

of the offense that the State was required to prove.

Accordingly, we further conclude that Pasion's argument is

without merit.

(2) Pasion contends, and the State concedes, that

Pasion was entitled to have a bifurcated proceeding in order for

the jury to determine the fact identified in HRS § 586-

11(a)(2)(A) that must be proved beyond a reasonable doubt before

an increased penalty could be levied. The State's concession is

well founded. See Auld, 136 Hawai#i at 247, 361 P.3d at 474; see

also State v. Wagner, 139 Hawai#i 475, 480, 394 P.3d 705, 710

(2017). Therefore, Pasion's sentence must be vacated, and Pasion

is entitled to a new or bifurcated sentencing proceeding in order

4
HRE Rule 1102 provides:

Rule 1102 Jury instructions; comment on evidence
prohibited. The court shall instruct the jury regarding the law
applicable to the facts of the case, but shall not comment upon
the evidence. It shall also inform the jury that they are the
exclusive judges of all questions of fact and the credibility of
witnesses.

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for a jury to determine whether the additional sentencing

requirements were proved beyond a reasonable doubt.5

Pasion further contends that the Family Court erred by

failing to conduct a colloquy concerning Pasion's stipulation

that Pasion had a prior violation-of-protective-order conviction

and that it involved the same Order for Protection. In State v.

Murray, 116 Hawai#i 3, 19-20, 169 P.3d 955, 971-72 (2007), the

supreme court held:
We now adopt an approach specifically concerning the
use of prior convictions to prove an element of a charged
offense. As discussed above, the cases have generally
adopted two initial steps in applying statutes aimed at
recidivist conduct or habitual offenders. First, if a
defendant decides to stipulate to the prior convictions, the
trial court must accept the stipulation. Second, the trial
court must engage defendant in a colloquy to confirm that
defendant understands his constitutional rights to a trial
by jury and that his stipulation is a knowing and voluntary
waiver of his right to have the issue of his prior
convictions proven beyond a reasonable doubt.

See also State v. Ui, 142 Hawai#i 287, 290, 418 P.3d 628, 631

(2018) (reiterating the holding in Murray).

We conclude that the requirements that (1) a defendant

understands his or her constitutional rights to a trial by jury;

and (2) his or her stipulation is a knowing and voluntary waiver

of his or her right to have the issue of his or her prior

convictions proven beyond a reasonable doubt are both applicable

5
We grant Pasion her request for relief, which is a bifurcated
sentencing proceeding. We do so in order to permit a jury to determine
whether the enhanced sentencing factors in HRS § 586-11(a)(2)(A) are proven
beyond a reasonable doubt. However, the elements of the offense of Violation
of an Order for Protection are set forth in the first two sentences of HRS §
586-11(a), and the enhanced sentencing factors are not elements of the
offense, as argued by Pasion. See generally Wagner, 139 Hawai #i at 480-85,
394 P.3d at 710-15.

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to the use of a prior conviction to enhance the sentencing

requirements set forth in HRS § 586-11(a)(2)(A). Here, while the

record is somewhat unclear, it appears that Pasion may have

stipulated, or been prepared to stipulate, to the prior

conviction in order to limit potentially prejudicial evidence

related to the prior conviction. Thus, on remand, if Pasion

wishes to stipulate to the prior conviction, the Family Court

must accept her stipulation. However, the stipulation may be

accepted only after the Family Court engages Pasion in an

on-the-record colloquy regarding her constitutional rights and

ensures that Pasion is making a knowing and voluntary waiver of

her right to have the prior conviction proven beyond a reasonable

doubt and decided by a jury. See Murray, 116 Hawai#i at 21, 169

P.3d at 973.

(3) Pasion argues that the Family Court abused its

discretion by denying her motion in limine to exclude certain

evidence that was admitted pursuant to HRE Rule 404(b).6 Pasion

6
HRE Rule 404 states, in relevant part:

Rule 404 Character evidence not admissible to prove
conduct; exceptions; other crimes.

. . . .

(b) Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity therewith. It may, however, be
admissible where such evidence is probative of another
fact that is of consequence to the determination of
the action, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, modus
operandi, or absence of mistake or accident. In
criminal cases, the proponent of evidence to be
(continued...)

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sought to exclude (1) evidence that she had previously violated

the Order for Protection in April 2018; and (2) Officer Maiava's

testimony that he was familiar with Pasion, as well as his

testimony concerning the April 2018 violation of the Order for

Protection.

Even if evidence is admissible under HRE Rule 404(b), a

trial court must weigh the potential prejudicial effects of the

evidence against its probative value under HRE Rule 403. State

v. Feliciano, 149 Hawai#i 365, 374, 489 P.3d 1277, 1286 (2021).

Here, at the hearing on the motion in limine, the State

argued that evidence of the prior violation of the Order for

Protection was admissible to show the absence of accident or

mistake. The State further argued that such evidence was

admissible to prove Pasion's "motive to an intent" to violate the

Order for Protection. Pasion argued that such evidence was

propensity evidence and emphasized that intent and mistake were

not at issue in the case, as Pasion did not dispute that she

intentionally went to the protected person's residence in

violation of the Order for Protection, but was going to rely on a

choice-of-evils defense.

The Family Court explained its HRE Rule 404(b) and Rule

403 analysis as follows:

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(...continued)
offered under this subsection shall provide reasonable
notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such
evidence it intends to introduce at trial.

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Evidence is admissible when it is, one, relevant and,
two, more probative than prejudicial. It's a two-step
analysis: One, classification of the evidence. It requires
a determination whether the prior evidence is probative of
any fact or consequences other than character or propensity.

. . . .

But [HRE Rule] 404(b) says evidence must be probative
of another fact that is –- of consequence to the
determination of the actions such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident.

I think that the prior [violation of the Order for
Protection], especially since it's been within one year,
does fall within this category of [HRE Rule] 404(b) in that
it is probative of another fact that is -- that is a
consequence of the action.

The next step I need to do is the balancing test, the
probative -- for [HRE Rule] 403, probative versus
prejudicial. "Prosecution must identify a valid theory of
relevancy and demonstrate the substantial probative value
for a designated purpose."

In Fetelee they discuss criminal intent, about
knowledge, recklessness, and the absence of mistake or
accidents are defenses that operate to negate intent.

The second prong is relevance and probative value
should be positive in the particular circumstances of the
case. I must consider the time elapsed between the crimes,
the strength or evidence as the commission of other crimes,
time elapsed between the prior and the other crimes charged,
the need for the other acts, the efficacy of alternative
proof and whether the other acts are likely to raise
overmastering hostility.

So basically I find that the evidence is probative in
that it would tend to negate intent or absence of mistake or
accident. I realize that the defense right now is choice of
evils. However, you know, I need to look at the totality of
the circumstances in this case. So I do believe that it
would take to negate absence, first of all, knowledge,
recklessness, absence of mistake or accident -- absence of
mistake or accident.

I do believe it's relevant because of the time between
the two offenses. It's within a year.

The strength or evidence of the commission of the
other crime. She pled to it. She's on, I think, probation
for it.

The time elapsed, like I said, is relatively short.

I don't believe that it would -- the prior crime would
likely to raise overmastering hostility towards the
defendant.

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With respect to -- if it's prejudicial, I need to
determine if there's a danger of unfair prejudice, confusion
of issues, misleading the jury, undue delay, waste of time,
and needless preparation of cumulative evidence. I don't
find that any of those factors apply so I don't believe that
it's prejudicial. I'm -- I'm going -- my ruling is that it
is more probative than prejudicial so I will allow it to
come in.

. . . .

And in order to eliminate any prejudice to [Pasion] I
also have a limiting instruction[.]

Although the Family Court's explanation that "the

evidence is probative in that it would tend to negate intent or

absence of mistake or accident" is a little hard to follow, it is

clear that the State was required to prove beyond a reasonable

doubt that Pasion "knowingly or intentionally" violated the Order

for Protection. See HRS § 586-11(a). Thus, evidence that Pasion

had previously been convicted of violating the Order for

Protection was relevant,7 as it tended to make it more likely

that her violation of the Order for Protection was knowing or

intentional and not the result of a mistake or accident.

Under HRE Rule 403, however, relevant evidence "may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence." In

weighing the probative value versus the prejudicial effect of

7
"Relevant evidence" is "evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence."
HRE 401.

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prior bad acts admitted for one of the purposes authorized under

HRE Rule 404(b), the supreme court has repeatedly held that:
[A] number of factors must be considered, including the
strength of the evidence as to the commission of the other
crime, the similarities between the crimes, the interval of
time that has elapsed between the crimes, the need for the
evidence, the efficacy of alternative proof, and the degree
to which the evidence probably will rouse the jury to
overmastering hostility.

State v. Gallagher, 146 Hawai#i 462, 470, 463 P.3d 1119, 1127

(2020) (citations omitted; format altered).

In Gallagher, the supreme court emphasized that each

factor must be considered in light of the purpose for which it

was offered. Id.

Here, as to the first factor, the strength of the

evidence as to the commission of the earlier conduct, Pasion did

not deny that she previously violated the Order for Protection.

Thus, the first factor does not weigh against admittance.

As to the second factor, the crimes were clearly

similar in that both times Pasion returned to her mother's

residence (her mother was the protected person), which was a

violation of the Order for Protection. However, with respect to

the prior incident, the protected person testified that Pasion

called out, "mother, I'm hungry," but in the latter incident

there is no report that Pasion said anything to her. In the

present case, Pasion's choice-of-evils defense involved Pasion's

purported fear for herself and her family because of an

approaching hurricane.

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With regard to the third factor, the interval of time

between the crimes, as the Family Court found, there was a

relatively short period of time between the two incidents. The

first violation of the Order for Protection occurred in April of

2018 and the second violation occurred in August of 2018.

However, as the supreme court explained in Gallagher:
[W]hen prior misconduct is similar to the current
offense and is offered to confirm identity or voluntariness
by establishing a common methodology or scheme, a close
connection in time and nature is highly probative only
because it increases the likelihood that the same actor
committed both instances of misconduct. . . . However, a
close proximity in time and nature between the prior
misconduct and the charged offense may also increase the
likelihood that a jury will consider the previous conduct to
conclude that the defendant has a propensity for committing
such acts, which is a prohibited inference.

Gallagher, 146 Hawai#i at 472, 463 P.3d at 1129 (citations

omitted).

The supreme court stressed that "when the evidence is

not offered for a purpose for which similarity in time and nature

is probative, a close unity between the acts potentially weighs

against admitting the evidence when it increases the chances of

unfair prejudice." Id. (citation omitted). In this case,

Pasion's intent to go to her mother's residence was not denied,

nor did she deny knowing that it was her mother's residence and

knowing that she was prohibited from going there by the Order for

Protection, and Pasion was not asserting that her conduct was a

mistake or an accident. Rather, Pasion's defense was that she

intended to go to the residence, knowing that it was her mother's

residence and that she was prohibited from going there by the

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Order for Protection, but that she was justified in doing so.

Thus, the close proximity in time between the two violations made

the earlier conviction both relevant and prejudicial. It was

relevant to show that Pasion's conduct was not an accident or

mistake, and that she knew that going to her mother's residence

was a violation of the Order for Protection. However, it was

also prejudicial as it increased the likelihood that a jury would

consider the prior conduct to conclude that Pasion had a

propensity for committing such acts, which is a prohibited

inference. See Wagner, 139 Hawai#i at 485, 394 P.3d at 715

(noting that a jury's knowledge of a prior conviction for the

same offense could have prejudiced the jury and contributed to

its decision to convict).

The third and fourth factors, the need for the evidence

and the efficacy of alternative proof, further weigh against

admittance. Here, there was minimal need, if any, to use the

prior conviction to prove that Pasion went to her mother's

residence intentionally, rather than by mistake or accident, and

that Pasion knew that such conduct violated the Order for

Protection. The protected person, Pasion's mother, testified

that she had lived at the residence for 17 years and that Pasion

previously lived with her at the residence.8 Pasion's mother

further testified that she and Pasion were present in the

8
It appears that Pasion may have lived there up until the time that
the Order for Protection was entered, as the order required her to leave the
residence and not come back.

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courtroom when the Order for Protection was issued and the judge

explained it to the both of them. At the August 2018 incident,

Pasion's mother saw Pasion in the garage of the residence and

Officer Maiava took a picture of Pasion in the garage after

responding to a 911 call from Pasion's mother concerning Pasion's

presence at the residence in violation of the Order for

Protection.

Regarding the final factor, there is nothing in the

record to indicate that the evidence concerning the prior

violation of the Order for Protection would rouse the jury to

overmastering hostility.

As part of, and in part related to, the evidence

concerning the prior conviction for the violation of the Order

for Protection, over Pasion's objections, Officer Maiava was

allowed to testify that he had "dealt with [Pasion] several

times" and the prosecution was allowed to question Officer Maiava

concerning the details of the incident underlying the prior

conviction. In conjunction with that testimony, the Family Court

gave a contemporaneous instruction to the jury, including that:
Ladies and gentlemen of the jury, you're about to hear
evidence that the defendant at another time engaged in and
committed another crime, wrong, or act. You must not use
this evidence to determine that the defendant is a person of
bad character and therefore must have committed the offense
charged in this case. Such evidence may be considered by
you only on the issue of defendant's motive, opportunity,
intent, preparation, plan, knowledge, identity, modus
operandi, or absence of mistake or accident and for no other
purpose. Again, this evidence does not go to prove the
character of the defendant to show action in conformity
therewith. It goes to the specific reasons detailed in the
rules of evidence.

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On May 7th, 2018, in 1FFC18-379 State versus
Concepcion Pasion, the defendant Concepcion Pasion pled no
contest to one count of a violation of order for protection.
She was subsequently convicted and sentenced on that same
day, May 7th, 2018.

Here, after reviewing the HRE Rule 404(b) factors, the

Family Court stated that "I don't find that any of those factors

apply so I don't believe that it's [i.e., the evidence Pasion

sought to exclude] prejudicial." On those grounds, the Family

Court concluded that the evidence was more probative than

prejudicial. However, the prior conviction and Officer Maiava's

"dealings" with Pasion were only marginally probative of Pasion's

intent and lack of mistake or accident as to the August 2018

incident, neither of which were disputed by Pasion. Pasion's

identity was not at issue, so there was no possible relevance to

Officer Maiava's testimony that he "dealt with" Pasion "several

times," while creating a prejudicial inference that multiple

interactions with the police indicated a possible pattern of

misconduct or unlawful behavior. While the evidence concerning

the prior bad acts were not particularly inflammatory, it

strongly suggested that Pasion had a propensity for committing

this particular violation, while otherwise providing minimal

probative value.

We necessarily consider the Family Court's limiting

instruction to the jury. In Gallagher, the supreme court noted

that "a court's limiting instruction to the jury is also

ineffective when it incorrectly instructs the jury about the

limited use of admitted evidence." 146 Hawai#i at 475, 463 P.3d
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at 1132. The supreme court highlighted earlier case law holding

that an instruction was improper when it allowed the jury to

consider prior bad acts for a purpose other than that for which

they had been admitted. Id. at 475-76, 462 P.3d at 1132-33.

Here, like in Gallagher, the Family Court's recitation of a long

list of purposes for which the prior bad acts could be considered

-- including plan, preparation and identity, which were either

irrelevant or patently undisputed -- did not restrict the

evidence to its proper scope and undercut the instruction's

remedial effect.

Particularly in light of the Family Court's

determination that the disputed evidence had no prejudicial

effect, but in light of all of the circumstances of this case, we

conclude that the Family Court abused its discretion in finding

that the prejudicial effect of the evidence of the prior

conviction and the portions of Officer Maiava's testimony

concerning the details of the incident underlying the prior

conviction and his other dealings with Pasion did not

substantially outweigh their probative value.

As we cannot determine the extent to which the evidence

of Pasion's prior conviction and prior dealings with the police

may have colored the jury's perception and influenced it to

reject Pasion's choice-of-evils defense, we cannot conclude that

the Family Court's error in admitting the subject evidence was

harmless beyond a reasonable doubt.

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For these reasons, we vacate the Family Court's October

24, 2018 Judgment, and remand the case for further proceedings

consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, October 27, 2022.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Phyllis J. Hironaka,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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