State v. Stan

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2021
07:53 AM
Dkt. 89 SO
NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
GABRIEL STAN, Defendant-Appellant

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

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

Defendant-Appellant Gabriel Stan (Stan) appeals from
the Circuit Court of the First Circuit's1 (Circuit Court) Amended
Judgment of Conviction and Sentence (Amended Judgment) entered on
May 24, 2018.2 Plaintiff-Appellee State of Hawai#i (State)
charged Stan via Complaint3 filed on August 14, 2017 with Robbery

1
The Honorable Fa'auuga L. To'oto'o presided.
2
Stan's Notice of Appeal filed July 20, 2018 appealed from the
Judgment of Conviction and Sentence entered on May 16, 2018, rather than from
the Amended Judgment entered May 24, 2018 which reflected the correct spelling
of Stan's first name. We construe Stan's appeal as an appeal from the Amended
Judgment. See State v. Bohannon, 102 Hawai#i 228, 236, 74 P.3d 980, 987
(2003).
3
The Complaint charged as follows:
On or about August 7, 2017, in the City and County of
Honolulu, State of Hawai#i, GABRIEL STAN, while in the
course of committing theft, and while armed with a dangerous
instrument, did use force against the person of Hana
Okuyama, a person who was present, with intent to overcome
Hana Okuyama's physical resistance or physical power of
resistance and/or did threaten the imminent use of force
against the person of Hana Okuyama, a person who was
present, with intent to compel acquiescence to the taking of
or escaping with the property, thereby committing the
offense of Robbery in the First Degree, in violation of
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in the First Degree (Robbery First Degree) in violation of Hawaii
Revised Statutes (HRS) § 708-840(1)(b)(i) and/or § 708-
840(1)(b)(ii) against Hana Okuyama (Okuyama). Following a jury
trial, Stan was found guilty as charged and sentenced to a
twenty-year term of imprisonment for Robbery First Degree in
violation of HRS § 708-840(1)(b)(i)(2014).4
On appeal, Stan contends that: (1) the Circuit Court
erred by failing to sua sponte instruct the jury on the included
offense of Robbery in the Second Degree (Robbery Second Degree);
(2) the Circuit Court abused its discretion when it denied Stan's
motion for mistrial after a witness for the State used the word
"victim" twice during testimony; and (3) Stan's right to a fair
trial was violated due to prosecutorial misconduct based on the
prosecutor's improper question during direct examination, which
unfairly undermined Stan's identification defense.
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, as
well as the relevant statutory and case law, we conclude
Stan's appeal is without merit.
(1) Included Offense Instruction
In his first point of error, Stan contends that the
Circuit Court erred when it failed to sua sponte instruct the
jury on the included offense of Robbery Second Degree (Robbery

3
(...continued)
Section 708-840(1)(b)(i) and/or Section 708-840(1)(b)(ii) of
the Hawai#i Revised Statutes.

4
HRS § 708-840(1)(b)(i), Robbery First Degree, states in pertinent
part:
(1) A person commits the offense of robbery in the
first degree if, in the course of committing theft or
non-consensual taking of a motor vehicle:
. . . .

(b) The person is armed with a dangerous instrument or a
simulated firearm and:
(i) The person uses force against the person of anyone
present with intent to overcome that person's physical
resistance or physical power of resistance . . . .

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Second Degree) under HRS § 708-841(1)(a) (2014)5 because there
was a rational basis in the evidence for the jury to consider
that charge. Neither Stan nor the State requested an instruction
for Robbery Second Degree.
The Robbery First Degree subsection (1)(b)(i) offense
at issue here and Robbery Second Degree both contain the common
material element of using force against the other person with
intent to overcome the other person's physical power of
resistance, in the course of committing theft. The higher grade
offense of Robbery First Degree requires an additional material
element of proof that the perpetrator be "armed with a dangerous
instrument." HRS § 708-840(2) defines "dangerous instrument" as
any weapon or instrument "which in the manner it is used or
threatened to be used is capable of producing death or serious
bodily injury." Stan argues that the jury may have found that
the knife used by Stan was not a "dangerous instrument" under the
Robbery First Degree statute, HRS § 708-840(1)(b), because there
was evidence from which the jury could infer the knife was not a
"dangerous instrument" under State v. Radcliffe, 9 Haw. App. 628,
645, 859 P.2d 925, 935 (1993).6 Stan argues that from Okuyama's
testimony that Stan displayed the knife and pointed it at her
chest, "the jury could have concluded that the knife being
pointed at her chest was inadvertent or incidental." Stan urges
that the jury "could have decided that, in the manner in which
Stan held or used the knife, or threatened to use it, the

5
HRS § 708-841(1)(a), Robbery Second Degree, provides that "[a]
person commits the offense of robbery in the second degree if, in the course
of committing theft" the person "uses force against the person of anyone
present with the intent to overcome that person's physical resistance or
physical power of resistance[.]"
6
In Radcliffe, we held that the trial court's instruction to the
jury in a Robbery First Degree case, that "[a] knife is a dangerous
instrument" was a misstatement of the law and improperly "took the question of
the knife's use from the jury." 9 Haw. App. at 645, 859 P.2d at 935. We
concluded, "[t]his was especially prejudicial to Defendant in view of
[complainant]'s and [witness]'s trial testimony that Defendant was merely
waving the knife around and not holding it against [complainant]'s throat" as
they indicated in their previous statements to the police. Id.

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evidence did not establish it was a 'dangerous instrument' beyond
a reasonable doubt."
Where an omission of jury instructions is at issue on
appeal, "the standard of review is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading." State v.
Flores, 131 Hawai#i 43, 57-58, 314 P.3d 120, 134-35 (2013)
(internal citations, alterations, and quotation marks omitted).
A "trial court is not obligated to charge the jury with respect
to an included offense unless there is a rational basis in the
evidence for a verdict acquitting the defendant of the offense
charged and convicting him of the included offense." Id. at 50,
314 P.3d at 127 (internal citations omitted).
In this case, Okuyama testified that once she stepped
outside the McDonald's on Kūhiō Avenue, a male she identified as
Stan approached her after he had been following her, and when he
came within a one-foot distance of her, Stan showed his knife,
threatened her, and demanded her bag. Stan pulled Okuyama's bag,
which was hanging from her arm, and pointed the knife directly at
her chest, below her left shoulder. Stan's pulling caused
Okuyama to fall when Okuyama did not let go of the bag. Okuyama
fell from the steps outside the McDonald's and onto the ground.
Okuyama's knees were scratched and bloody from the fall. Okuyama
was "very scared." Stan ran away, but Okuyama saw him two to
three hours later when the police had detained him, and she
identified Stan as the male who had tried to take her bag.
Okuyama's account of the robbery incident was
corroborated by two eyewitnesses. Eyewitness Shangrila Peralta
(Shangrila), a resident from Washington who was visiting Honolulu
with her family for a wedding, testified that she saw a white
male, whom she identified as Stan, pull shopping bags from an
Asian female (Okuyama) who was screaming. Stan pulled Okuyama
down off the steps of McDonald's while tugging at Okuyama's bag.
As Okuyama fell to the ground, Shangrila told the male to stop.
Stan paused and looked at Shangrila before running off.

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Shangrila's brother, eyewitness Czardemund Peralta (Czar), also
heard a loud scream and saw a male throw a Japanese female onto
the ground. Czar saw a male holding a knife and struggling to
pull the female's purse or shopping bag away from her, before he
ran off. Czar identified the male as Stan. Czar immediately
chased Stan down Kūhiō Avenue and Seaside Avenue. Czar said he
chased Stan because he "actually thought [Stan] had stabbed her
'cause I saw the knife," and Czar didn't want Stan to run away.
After checking to see that Okuyama was okay, Shangrila then ran
after Czar to make sure he was okay. Later, Honolulu Police
Department (HPD) officers recovered a white plastic bag from
Shangrila which turned out to contain, a "[t]urquoise
kitchen-type knife with an 8-inch blade," which was submitted as
evidence. Shangrila testified that Stan had the white plastic
bag in his hand during the incident. A bystander gave Shangrila
the white plastic bag as she was chasing Czar and Stan, and the
bystander told Shangrila that Stan had dropped it.
Based on our review of the evidence as to the element
of "dangerous instrument," there was no rational basis in the
record for the jury to acquit Stan of Robbery First Degree and
convict him of Robbery Second Degree. See Flores, 131 Hawai#i at
50, 314 P.3d at 127. Stan's contention is without merit.
(2) Motion for Mistrial
In his second point of error, Stan contends that the
Circuit Court abused its discretion by refusing to grant Stan's
oral motion for a mistrial for a violation of a motion in limine,
because the State's police officer witness used the word "victim"
twice during his testimony. The first occurrence was when the
officer described his arrival at the scene on August 7, 2017:

Q Where did you proceed to from your location on
Kalakaua?
A From that particular area, I went to Kalakaua
and Seaside, which is in Waikiki where H&M is
right now. That's where I saw some of the
bystanders flagging me down about the incident,
and the male had taken off from that area. So I
then asked where did the incident occur, and they
led me or they told me that it happened on Kuhio

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at the McDonald's. So then I moved on from that
area to the area where the victim was –-
Q Okay.

A -- to figure out if she needed treatment first
and what happened.

(emphasis added). Stan did not object at this point during the
officer's testimony. When the second reference to the term
"victim" occurred, defense counsel moved to strike the response,
and the Circuit Court promptly did so, as follows:

Q Okay. At that point what was the purpose of
detaining the defendant?

A Since the defendant matched the description, I
just wanted to make sure that that was positively the
male that the victim had been looking for, we had been
looking for.

[DEFENSE COUNSEL]: Move to strike the response, Your
Honor.
THE COURT: Okay. Part of the officer's
description of the complainant as the victim, you
folks have to disregard that statement by the police
officer.

(emphases added). When Stan orally moved for a mistrial the
following day, the Circuit Court denied the motion.
"The denial of a motion for mistrial is within the
sound discretion of the trial court and will not be upset absent
a clear abuse of discretion." State v. Plichta, 116 Hawai#i 200,
214, 172 P.3d 512, 526 (2007) (citing State v. Rogan, 91 Hawai#i
405, 411, 984 P.2d 1231, 1237 (1999)). Counsels and witnesses
should refrain from using the term "victim," as the term is
"conclusive in nature and connotes a predetermination that the
person referred to had in fact been wronged." State v. Mundon,
129 Hawai#i 1, 26, 292 P.3d 205, 230 (2012) (citing State v.
Nomura, 79 Hawai#i 413, 416, 903 P.2d 718, 721 (App. 1995)).
Avoiding the use of the term "victim" in a trial is consistent
with the principles of the "presumption of innocence and the
maintenance of fairness and impartiality during the trial[.]"
Id. In Mundon, where two witnesses referred to the complainant
as "victim" in their testimony, the supreme court found reversal

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of the conviction was not warranted where "the use of the term
'victim' in the limited circumstances of th[e] case was not
prejudicial" to the defendant. Id. at 26, 292 P.3d at 230. In
State v. Austin, 143 Hawai#i 18, 31, 422 P.3d 18, 31 (2018), the
supreme court held in a murder case, where "there was no dispute
as to whether [the decedent] had been the object of a crime, and
the key issue at trial was the identity of the perpetrator, the
State's use of the term 'victim' did not connote Austin's guilt."
(brackets added) (emphasis in original). Under these
circumstances, the supreme court concluded that the trial court
did not err in permitting the State or its witnesses from
referring to the decedent as "the victim" at trial. Id.
In this case, while the police officer witness
improperly used the term "victim" twice, the Circuit Court
immediately struck the response and provided a curative
instruction to the jury. Juries "are presumed to . . . follow
all of the trial court's instructions." State v. Knight, 80
Hawai#i 318, 327, 909 P.2d 1133, 1142 (1996) (citation omitted).
The minimal use of the term "victim" in this case, by a single
witness twice in his testimony, promptly cured by the Circuit
Court, did not constitute prejudice warranting reversal of Stan's
conviction. See Mundon, 129 Hawai#i at 26, 292 P.3d at 230.
Similar to the situation in Austin, where there was no dispute in
this case that Okuyama had been the object of a robbery, and the
key issue at trial was identification, a single witness's use of
the term "victim" twice during his testimony, did not connote
Stan's guilt. See Austin, 143 Hawai#i at 31, 442 P.3d at 31.
There was no abuse of discretion by the Circuit Court in denying
Stan's motion for mistrial under these circumstances. See id.;
Plichta, 116 Hawai#i at 214, 172 P.3d at 526.
(3) Violation of the Motion in Limine
In his third point of error, Stan contends that he was
denied his right to a fair trial and suffered from prosecutorial
misconduct when the State's improper question led an HPD officer
to testify that the knife recovered in the robbery investigation

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was the same knife the officer observed in Stan's possession
earlier on the same day of the incident, in violation of a motion
in limine. Stan argues that because his defense at trial was
misidentification, the HPD officer's improper testimony
undermined his defense.
"The term 'prosecutorial misconduct' is a legal term of
art that refers to any improper action committed by a prosecutor,
however harmless or unintentional." State v. Maluia, 107 Hawai#i
20, 25, 108 P.3d 974, 979 (2005)(italics and internal quotation
marks in original). "Allegations of prosecutorial misconduct are
reviewed under the harmless beyond a reasonable doubt standard,
which requires an examination of the record and a determination
of 'whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.'"
Austin, 143 Hawai#i at 28, 422 P.3d at 28 (citing State v.
Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)
(quoting State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d
1215, 1220 (1996))). "Prosecutorial misconduct warrants a new
trial or the setting aside of a guilty verdict only where the
actions of the prosecutor have caused prejudice to the
defendant's right to a fair trial." Id. at 39-40, 422 P.3d at
39-40 (quoting State v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194,
209 (1996) (quoting State v. McGriff, 76 Hawai#i 148, 158, 871
P.2d 782, 792 (1994))). When determining whether the alleged
prosecutorial misconduct rises to the level of reversible error,
this court considers three factors: (1) the nature of the alleged
misconduct; (2) the promptness or lack of a curative instruction;
and (3) the strength or weakness of the evidence against the
defendant. Id. at 40, 422 P.3d at 40.
In this case, the State questioned the officer about
the knife and the officer's prior observation of that knife, as
follows:

Q [(PROSECUTOR)]: Okay. Did you ever learn that a knife
had been used?

A [(POLICE OFFICER WITNESS)]: Yes.

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Q And did you get a description of the knife?
A Yes, I did.

Q And what was the description of the knife that you
got?

A It was a blue – bluish turquoise knife is the color
that it was, inside of a sheath.

Q Did you – had you seen this knife before?
A Yes, I have.
Q And can you I guess – can you – in general terms can
you describe to the jury when you saw this turquoise
knife.

A On the same day that I had gotten this flag-down, I
had arrested a male on that same morning, early in the
morning. And that male that I had arrested in that
instant, he relayed to me that he had a knife on his
waistband. He then showed me the knife, exposed the
knife, and it was that same bluish turquoise knife
that I observed in that investigation that night.

[DEFENSE COUNSEL]: Objection. Move to strike.
Motions in limine.

(emphasis added). During a bench conference, defense counsel
referenced the following ruling made, prior to the start of
trial, during a March 5, 2018 motions in limine hearing:

[DEFENSE COUNSEL]: The specific ruling in motions in
limine is he could describe what he saw earlier that day
but not make the conclusion that it was the same knife.
I think that was specifically ruled on by the Court. And
he has since testified that it's the same knife. So I
think that needs to be, No. 1, stricken. And you know,
at this point I'm going to ask for a mistrial.
THE COURT: The officer is about to testify --
isn't the testimony that the defendant is seen, observed
with the knife?

[DEFENSE COUNSEL]: Right. But I specifically asked
after that that he cannot make the conclusion that it's
the same knife.
[PROSECUTOR]: I can just ask him to -- to
describe.

THE COURT: The Court will give you a
cautionary instruction to strike the part of the
officer's answer concluding that the knife is the same
knife.

[DEFENSE COUNSEL]: Your Honor, while I'm here, I'm
going to make a motion for mistrial because it's a
violation of the motions in limine. This is a police
officer and the prosecution should have advised him not

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to make this statement.
THE COURT: All right. Motion denied.

. . . .
THE COURT: All right. Officer, resume your
chair before we continue.
Ladies and gentlemen, part of the officer's
answer indicating the knife that he had seen earlier is
the same knife involved in the incident -- you folks are
ordered to disregard this part of the answer from the
police officer. Okay? Thank you very much.

(emphasis added). We apply the three factors to the trial record
to determine whether the prosecutorial misconduct rises to the
level of reversible error. See Austin, 143 Hawai#i at 40, 422
P.3d at 40.
The first factor requires consideration of the nature
of the misconduct. The prosecutor's question to the officer as
to whether he had seen "this knife before" violated an in limine
ruling that prohibited the officer's conclusion that the knife
recovered in the robbery case was the "same knife" as the one the
officer had seen Stan in possession of earlier that same day.7

7
The Circuit Court's in limine ruling was less than clear, on the
one hand precluding the "same knife" testimony, but also allowing the
prosecutor to elicit testimony from the officer who recovered "the knife that
turned out to be the same knife." The pertinent portion of the transcript
reads:
THE COURT: So you may -- you may refer to this earlier
incident minus any testimony going to defendant seen
stabbing a tree.

[DEFENSE COUNSEL]: Your Honor, I would also ask that the
conclusion that it's the same knife not be allowed.
THE COURT: Take out the same knife, but knife of the same
color found -- describe the knife and this is the color of
the knife, and then take it from there to your -- your
arresting officer who recovered the same, the knife that
turned out to be the same knife.
[PROSECUTOR]: Okay.
THE COURT: So -- okay. So earlier -- so State allowed to
elicit testimony about a knife. Defendant arrested earlier
as indicated by defense counsel and a knife was found on
him. Okay. That's fine minus the testimony about seeing
the defendant stabbing the tree earlier with the knife.
Okay?
[DEFENSE COUNSEL]: And just the description; right?
(continued...)

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(emphasis added). This was misconduct. See Maluia, 107 Hawai#i
at 25, 108 P.3d at 979.
Because the improper question constituted prosecutorial
misconduct, we examine the second factor regarding the promptness
or lack thereof, of any curative instruction to the jury. See
Austin, 143 Hawai#i at 40, 422 P.3d at 40. Here, a curative
instruction was promptly given to the jury, which was
specifically told to disregard the "same knife" testimony. The
jury is presumed to have complied with the Circuit Court's
instruction. See State v. Underwood, 142 Hawai#i 317, 327, 418
P.3d 658, 668 (2018) (when a trial court promptly addresses the
impropriety, the improper remarks are generally considered cured
by the court's instruction to the jury because "it is presumed
that the jury abided by the court's admonition to disregard the
statement.") (quoting State v. McGriff, 76 Hawai#i 148, 160, 871
P.2d 782, 794 (1994)).
The third factor requires consideration of the strength
or weakness of the evidence against the defendant. See Austin,
143 Hawai#i at 40, 422 P.3d at 40. The evidence against Stan in
support of the Robbery First Degree charge was strong. Okuyama,
a 19-year-old university student from Japan, was walking back to
her hotel alone, when she noticed Stan followed her and "smiled
at her," which made her "nervous" and "very scared." Okuyama
unequivocally identified Stan as the person who had been
following her and waiting for her outside of McDonalds, when he
robbed her by threatening her with a knife and pointing it at her
chest. Czar confirmed seeing Stan trying to pull Okuyama's bags
from her while he had a knife. Czar saw this from a "pretty

7
(...continued)
THE COURT: Yes.

[DEFENSE COUNSEL]: Okay.
THE COURT: All right. So Ms. Prosecutor, please make note
of that.
[PROSECUTOR]: Yes.

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close" distance, "[m]aybe 15 feet" away. Eyewitness Shangrila
also saw the incident between Stan and Okuyama from about 20 feet
away and corroborated Okuyama's account of what occurred.
Shangrila turned in a white plastic bag that another bystander
had given to her after the chase, explaining that Stan had
dropped it. Shangrila had also seen Stan holding the white bag
during the robbery incident. Shangrila handed over the white bag
to the police. The bag contained the knife. There was
overwhelming evidence to support the jury's verdict that Stan was
the person responsible for robbing Okuyama while threatening her
with a knife. We conclude that any misconduct in this case does
not rise to the level of reversible error, nor was Stan denied
his right to a fair trial. See Austin, 143 Hawai#i at 39-40, 422
P.3d at 39-40.
Therefore, IT IS HEREBY ORDERED that the Amended
Judgment of Conviction and Sentence, entered May 24, 2018, in the
Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, Hawai#i March 30, 2021.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
William K. Li,
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
City and County of Honolulu Associate Judge
for Plaintiff-Appellee

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