State v. Del Rosario

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-MAR-2024
08:01 AM
Dkt. 72 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
GLENN DEL ROSARIO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CPC-XX-XXXXXXX(4))

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Defendant-Appellant Glenn Del Rosario (Del Rosario)

appeals from the Judgment; Conviction and Probation Sentence;

Terms and Conditions of Probation; Notice of Entry (Judgment)

entered on December 4, 2018, in the Circuit Court of the Second

Circuit (Circuit Court).1

Del Rosario was charged with one count of Reckless

Endangering in the First Degree in violation of Hawaii Revised

Statutes (HRS) § 707-713(1) (2014).2 The jury found Del Rosario

1
The Honorable Richard T. Bissen, Jr. presided.
2
A second charge was dismissed with prejudice.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

guilty of the lesser included offense of Reckless Endangering in

the Second Degree in violation of HRS § 707-714 (2014).

Del Rosario raises three points of error on appeal,

contending that: (1) the prosecutor committed prosecutorial

misconduct in the rebuttal closing argument; (2) the Circuit

Court abused its discretion when it considered Del Rosario's

maintenance of innocence as a factor in sentencing; and (3) there

was insufficient evidence to support the conviction.

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 by the parties, we

resolve Del Rosario's points of error as follows:

(1) Del Rosario argues that the State committed

prosecutorial misconduct in the rebuttal argument. First, Del

Rosario contends that the State misled the jury by arguing that

because Del Rosario applied for several hunting permits from

Pûlama Lâna#i between 2009 (when he registered a 22-250 Remington

rifle) and 2017 (when he obtained a hunting permit for a

shotgun), the jury could infer that he still possessed the rifle

allegedly used at the incident. Second, Del Rosario argues that

the State improperly shifted the burden of the proof to Del

Rosario by arguing that there was no evidence he had gotten rid

of the gun. Del Rosario points to the following:
And that's what this comes down to. Does he have the
means? . . . . And, you know, up until at least August 3rd
of 2017, based on the invoice, he's been hunting. He's been
hunting for years. So you can make the reasonable inference
that he still has that gun. There's no evidence that he got
rid of the gun. Of course he's got the gun. He's been
hunting for years. And he wants to continue to hunt.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Because Del Rosario concedes that he did not object to

these comments, we review for plain error. See State v. Udo, 145

Hawai#i 519, 534, 454 P.3d 460, 475 (2019).

First, we conclude that the State did not mislead the

jury because the record reflects that no gun was admitted into

evidence and there was no testimony or other evidence

specifically identifying the gun used during the incident. The

testimony reflects that Del Rosario purchased "a lot" of hunting

permits prior to August 2017. The State, like the prosecution in

State v. Austin, commented on the state of the evidence and asked

the jury to draw a reasonable inference from the multiple hunting

permits purchased by Del Rosario, i.e., that Del Rosario had been

hunting frequently prior to August 2017. 143 Hawai#i 18, 49, 422

P.3d 18, 49 (2018).

Second, Del Rosario argues that the State improperly

commented on his rights to remain silent and to be presumed

innocent when it stated "[t]here's no evidence that [Del Rosario]

got rid of the gun." Del Rosario asserts that the State's

comment could only be construed as implying that Del Rosario

should have testified or produced other evidence to prove that he

"disposed of the rifle." The State argues that its comments were

made during rebuttal and in response to Del Rosario's closing

arguments, and that the State was allowed to respond that the

evidence and/or a reasonable inference from the evidence showed

Del Rosario still possessed the rifle.

Del Rosario's attorney made the following argument

during closing:

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

[DEFENSE COUNSEL] The government has not made its
case in the first one. Element number one; that [on] or
about August 21st of last year, County of Maui, State of
Hawaii the defendant fired a firearm. You can stop right
there. Where is the proof of a firearm? No gun. It hasn't
been presented. We haven't seen a photograph. What do we
have? We have a permit. We have a permit to acquire that
is almost a decade old.

When you go into that jury room you'll see that permit
was in 2009. Does that mean he still has it? Does that
mean that he had it that day? Does that mean that he used
it unlawfully to shoot a deer? Absolutely not. They have
not made that connection, folks.
. . . .

[DEFENSE COUNSEL] All we ask you to do is follow the
law. Because with only [Jayson Medeiros ( Medeiros)], and
only his contradictions and his inability to give us a
precise story on what happened, without the casing, without
a gun, there can only be one result. On that verdict form
you must find Mr. Del Rosario not guilty. Thank you.

In rebuttal, the State argued:
[PROSECUTOR] ... Does he have the means? Does he have
the opportunity? Does he have the motive? And, you know,
up until at least August 3rd of 2017, based on the invoice,
he's been hunting. He's been hunting for years. So you can
make the reasonable inference that he still has that gun.
There's no evidence that he got rid of the gun. Of course
he's got the gun. He's been hunting for years. And he
wants to continue to hunt.

The prosecutor's rebuttal arguments, in context of the

defense's arguments, do not shift the burden to Del Rosario to

show that he disposed of the rifle. During its rebuttal, the

State had wide latitude to discuss the evidence and argue

reasonable inferences therefrom in response to the defendants

arguments. See State v. Acker, 133 Hawai#i 253, 280, 327 P.3d

931, 958 (2014). The State's comments were in response to Del

Rosario's argument regarding the lack of proof of a firearm by

pointing out the evidence, albeit circumstantial, that Del

Rosario had a gun. See State v. Clark, 83 Hawai#i 289, 305-06,

926 P.2d 194, 210-11 (1996). Thus, we conclude that Del

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Rosario's prosecutorial misconduct claims do not warrant relief

from the jury's verdict.

(2) Del Rosario argues that there was insufficient

evidence to support one of the three alternative theories of

Reckless Endangering in the Second Degree in violation of HRS

§ 707-714(b) (2014), i.e., that Del Rosario intentionally

discharged a firearm into a populated area. The State argues

that there was no reasonable possibility the jury convicted Del

Rosario for intentionally discharging a firearm into a populated
area, and even if there was, there was substantial evidence to

support the conviction.

In alternative means cases, unanimity is not required

"as to the means by which the crime is committed so long as

substantial evidence supports each alternative means." State v.

Rabago, 103 Hawai#i 236, 251, 81 P.3d 1151, 1166 (2003) (citation

omitted). As to the sufficiency of the evidence in these cases,

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." State v. Jones, 96 Hawai#i 161, 181, 29 P.3d 351, 371

(2001). We review sufficiency of the evidence here in the

strongest light for the prosecution. State v. Jones, 148 Hawai#i

152, 166, 468 P.3d 166, 180 (2020).

HRS § 707-714(1)(b) provides:
§ 707-714 Reckless endangering in the second
degree. (1) A person commits the offense of reckless
endangering in the second degree if the person:
. . . .

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(b) Intentionally discharges a firearm in a
populated area, in a residential area, or
within the boundaries or in the direction
of any road, street, or highway; provided
that the provisions of this paragraph
shall not apply to any person who
discharges a firearm upon a target range
for the purpose of the target shooting
done in compliance with all laws and
regulations applicable thereto.

The legislative history of HRS § 707-714 states: "Your

Committee finds that a person who intentionally discharges a

firearm in areas likely to be traveled or inhabited by other

people creates an obvious risk of harm to the public and should
be subject to misdemeanor liability." Sen. Stand. Comm. Rep. No.

3060, in 1990 Senate Journal, at 1244 (emphasis added); see also

State v. Martins, 106 Hawai#i 62, 101 P.3d 671 (App. 2004), rev'd

on other grounds, 106 Hawai#i 136, 102 P.3d 1034 (2004) (holding

that the jury could have found the area was populated when

testimony reflected that four to five cars frequented the area

and people were often seen on motorcycles or dirt bikes in the

area).

The testimony here reflects that people likely traveled

the area in which the incident occurred, inter alia, Medeiros
testified that he encountered poachers a lot at Pûlama Lâna#i and

many cars stop on Manele Road and Alec Pascua, a game management

manager at the time of the incident, testified that the area in

which the incident occurred had problems with poaching and was a

popular area for hunting, stating that its nickname was

"Forbidden Lands or the zoo" due to its "abundance of animals and

trophy animals." We conclude that there was substantial evidence

to support the alternative that Del Rosario intentionally

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

discharged a firearm into a populated area. See Jones, 96

Hawai#i at 181, 29 P.3d at 371.

(3) Del Rosario argues that the Circuit Court

erroneously considered his maintenance of innocence during

sentencing. The supreme court has held "that 'a sentencing court

may not impose an enhanced sentence based on a defendant's

refusal to admit guilt with respect to an offense the conviction

of which he intends to appeal.'" State v. Barrios, 139 Hawai<i

321, 338, 389 P.3d 916, 933 (2016) (quoting State v. Kamana#o,
103 Hawai<i 315, 316, 82 P.3d 401, 402 (2003)). In Kamana#o,

where this issue was "one of first impression in this

jurisdiction," 103 Hawai<i at 320, 82 P.3d at 406, the supreme

court adopted a "three-factor analysis" first employed by the

Michigan Supreme Court. Id. at 323, 82 P.3d at 409; see People

v. Wesley, 411 N.W.2d 159, 162 (Mich. 1987).

The three factors are: "(1) the defendant's

maintenance of innocence after conviction, (2) the judge's

attempt to get the defendant to admit guilt, and (3) the

appearance that, had the defendant affirmatively admitted guilt,

his sentence would not have been so severe." Kamana#o, 103

Hawai<i at 323, 82 P.3d at 409. Here, Del Rosario maintained his

innocence during sentencing, the Circuit Court commented

throughout sentencing about how Del Rosario never showed remorse

or took responsibility for his actions, the court asked Del

Rosario multiple times if there was anything else he would like

to say, and told Del Rosario to "think carefully" about what he

wanted to say. The Circuit Court closed its remarks with:

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"again, I understand you're claiming innocence, notwithstanding

the contradiction of all the evidence that was put in. And so

for that reason the Court is going to impose sentence. I believe

that jail time is warranted in this case." It appears from the

Circuit Court's statements during sentencing that the court would

have sentenced Del Rosario differently if he had admitted guilt.

In light of the foregoing, we conclude that the Circuit
Court abused its discretion in imposing a sentence including jail

time based on Del Rosario's refusal to admit guilt. Therefore we

vacate Del Rosario's sentence, and remand this case for

resentencing.

For the reasons discussed above, the Circuit Court's

December 4, 2018 Judgment is vacated as to Del Rosario's sentence

and affirmed in all other respects. This case is remanded for

resentencing.

DATED: Honolulu, Hawai#i, March 14, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
William H. Jameson, Jr.,
Deputy Public Defender, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge

Gerald K. Enriques, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.

8