State v. Arquilla

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NO. 29309
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI'I, Plaintiff-Appellee, v. .. * ‘
KELLY A. ARQUILLA, Defendant-Appellant <)..° =

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-CRIMINAL NO. 07-1-2207) ;

MEMORANDUM OPINION | =
(By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.)

This memorandum opinion addresses two points of alleged
error regarding communications between the court and a
deliberating jury. Specifically, we determine whether it was
erroneous for the trial court to: (1) deny a jury's request to
review a significant portion of witness testimony transcripts,
and (2) answer a question from the jury by referring them back to
a portion of the jury instructions. In addition, we determine
whether layperson eyewitness testimonies were insufficient to
establish "bodily injury" under section 707-700, Hawaii Revised
Statutes (1993), in part because an examining physician found no
injuries on the infant victim.

For the reasons discussed below, we conclude that the
trial court's responses to the jury were not erroneous, and that
the eyewitness testimony was sufficient to establish bodily
injury. Consequently, we affirm the judgment of the Family Court
of the First Circuit (family court) ./

Defendant-Appellant Kelly A. Arquilla (Arquilla)
appeals from the July 15, 2008 Judgment of Conviction and
Sentence finding her guilty of Abuse of Family or Household
Members in violation of section 709-906 (1), Hawaii Revised
Statutes (Supp. 2009). Arquilla was sentenced to twenty-two days
in prison, with credit for time served, and two years of
probation in the Hawai‘i Opportunity Probation with Enforcement

program. She was also ordered to pay a crime victims

i/ The Honorable Patrick W. Border presided.
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compensation fee of $55.00 and a probation services fee of
$150.00.

On appeal, Arquilla argues that: (1) the family court
reversibly erred by denying the jury's request for transcripts of
the testimony of the four principal percipient witnesses, (2)
there was insufficient evidence for the jury to find Arquilla
guilty under the statute, and (3) the family court reversibly
erred by responding to a jury inquiry by referring the jury back
to a specific section of the jury instructions. We resolve

Arquilla's points of error as follows:

I. The Family Court Did Not Abuse Its Discretion By Refusing To
Provide The Jury With The Requested Transcripts

Arquilla was charged with one count of Abuse of Family
or Household Members, under which the State contended that
Arquilla intentionally, knowingly or recklessly dropped her
twenty-four-day-old daughter from approximately waist-height onto
the floor of her apartment in the aftermath of an argument with
the Ben Teixiera (Ben), her boyfriend and the infant's father.
The charge was based largely on the eye-witness
testimony of Sharon Teixiera (Sharon) and her boyfriend, Jesse
Grinker (Jesse). Sharon is Ben's sister, and was present at
Arquilla's apartment to help Ben get gas for his car.

After closing arguments in the case and after
deliberating for a few hours, the jury sent the following written
communication to the court: "The jurors do not all agree as to
what the witnesses said and which witness said what. So, we
request a transcript of the testimonies of: Sharon[,] Jesse[,]
Ben[, and Arquilla]."

The family court responded, in writing: "You must rely
upon your memory of the evidence in your deliberations. There
are no transcripts of the witness[es]' testimony."

This court has previously held that "[b]ecause the
circuit court's response to a jury communication is the
functional equivalent of an instruction, the standard of review
for jury instructions also applies to reviewing a trial court's

answers to jury communications." State v. Miyashiro, 90 Hawai‘i
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489, 492, 979 P.2d 85, 88 (App. 1999) (trial court's failure to
provide unanimity instruction in response to jury's request for
information on charged offense was misleading) .

- When jury instructions are 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. Gonsalves, 108
Hawai‘i 289, 292, 119 P.3d 597, 600 (2005) (quoting State v.
Kinnane, 79 Hawai‘i 46, 49 897 P.2d 973, 976 (1995)) (internal

quotation marks omitted).

In determining whether the family court's response to
the jury's request is prejudicially insufficient, erroneous,
inconsistent or misleading, we observe that trial courts are
typically afforded significant deference with regard to jury
requests for transcripts. The Hawai‘i Supreme Court has referred

approvingly to the Illinois Supreme Court's explanation that:

The trial court will have . . . full knowledge of the case.
It will know the charges against the accused, the witnesses
and their supporting or defeating testimony and other
evidence which may have been presented. It will be ina
position to assess the request and judge whether a review of
testimony, considering the circumstances, will be helpful or
hurtful to the jury's proper deliberations. This question
of review, like so many others which appear in the course of
trial, is best entrusted to the trial court's sound
discretion.

State v. Minn, 79 Hawai‘i 461, 466, 903 P.2d 1282, 1287 (1995)
(quoting People v. Pierce, 308 N.E.2d 577, 578 (Ill. 1974)
(affirming trial court's denial of jury's request for testimony
of the victim and arresting officer).

As a result, the decision whether to allow a read back
of testimony to a jury during deliberations is a matter "entirely
in the sound discretion of the [trial] court." Medeiros v.
Udell, 34 Haw. 632, 638 (Haw. Terr. 1938). The majority of
jurisdictions that have considered the question follow this
approach. Minn, 79 Hawai‘i at 465-66, 903 P.2d at 1286-87; see,
e.g., United States v. Holmes, 863 F.2d 4, 5 (2d Cir. 1988);
United States v. De Palma, 414 F.2d 394, 396-97 (9th Cir. 1969);
People v. Coleman, 534 N.E.2d 583, 610 (Ill. App. Ct. 1989);
Commonwealth v. Richenburg, 518 N.E.2d 1143, 1150 (Mass. 1988);
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State v. Lang, 272 S.E.2d 123, 124 (N.C. 1980); People v. Howe,
221 N.W.2d 350, 351-52 (Mich. 1974).

Nevertheless, there are limits to the trial court's
discretion. In Minn, for instance, the supreme court observed
that "an arbitrary denial of a jury's request for a ‘read back'!
of a witness's testimony during deliberations constitutes an
abuse of discretion." Id. at 465, 903 P.2d at 1286 (citing State
v. Estrada, 69 Haw. 204, 228-29, 738 P.2d 812, 828 (1987) (where
two witnesses!’ testimonies contradicted each other, the
unexplained exclusion of the testimony of one witness, despite a
jury request for both, may have improperly influenced the jurors
into believing that the testimony of the other witness was more
important, and was therefore an abuse of discretion)).
Furthermore, "(t]he trial court's reasons for granting or denying
the jury's request should be clearly set forth in the record."
Minn, 79 Hawai‘i at 466, n.9, 903 P.2d at 1287, n.9.

We reiterate the supreme court's admonition that the
trial court should state on the record its reasons for granting
or denying a jury's request for a "read-back" or for testimony
transcripts. Id. We decline, however, to. find an abuse of
discretion here because this case revolves around the relatively
straightforward issue of whether the jury believed that Arquilla
intentionally, knowingly or recklessly dropped her infant
daughter on the floor outside the apartment bathroom, and whether
as a consequence, the infant suffered physical pain, illness, or
any impairment of physical condition. The jurors had not been
deliberating long before they requested transcripts of the
testimony of four of the six trial witnesses. After receiving
the court's response, the jurors did not renew or narrow their
request, nor did they advise the court that they were deadlocked.
Rather, by the next morning, the jury announced its decision.

We do not conclude that the family court's failure to
say any more than that "there are no transcripts of the
witnessfes]' testimony" amounts to a failure to state its
reasons, or an "arbitrary denial" of the jury's request. Under
the circumstances of this case, the family court's failure to set

out in detail its rationale for denying the jury's request or to

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immediately explore options which might have accommodated the
jury, standing alone, did not adversely affect Arquilla's
substantial rights. Thus, we conclude that there was no abuse of
discretion here.

Indeed, in Minn, the supreme court applied the abuse of
discretion standard and held that the trial court's observation
that: "(1) the issue before the jury was a simple one; (2) the
evidence was presented to the jury in just one full day; and (3)
the jury had been deliberating for a full day and a half[,]" was
a sufficient basis for the trial court to conclude that the jury
was hopelessly deadlocked, and upon which to refuse to conduct a_
requested read back of witness testimony. Minn, 79 Hawaifi at
466, 903 P.2d at 1287. Ina similar context here, no
instructional error has been demonstrated. Consequently, we
conclude that the family court did not abuse its discretion by
refusing to provide the jury with the transcripts it requested.
See State v. Smith, 582 N.W.2d 894, 895-96 (Minn. 1998) (denial
of jury's request for re-reading was not plainly erroneous; court
stated that jurors should rely on their memory and that no

transcripts were available).

II. There Was Sufficient Evidence To Convict Arquilla Of Abuse
Of Family Or Household Members
Arquilla claims that there was insufficient evidence to
convict her of Abuse of Family or Household Members because the
State failed to prove that she intentionally, knowingly, or
recklessly caused bodily injury to her infant daughter.2/ We

a/ Although framed as the State's failure to establish the requisite
state of mind, Arquilla's argument is directed toward establishing that error
arises from the State's alleged failure to prove bodily injury. To the extent
that Arquilla argues that the State failed to establish intent, the supreme
court has "consistently held that proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the defendant's
conduct is sufficient. Thus, the mind of an alleged offender may be read from
his acts, conduct and inferences fairly drawn from all the circumstances."
State v. Stocker, 90 Hawai‘i 85, 92, 976 P.2d 399, 406 (1999) (quoting State
v. Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982)) (internal quotation
marks, ellipses, and brackets omitted). Arquilla concedes that two witnesses,
Sharon and Jesse, testified that they observed Arquilla intentionally drop the
infant from waist-high onto a hard linoleum floor outside the bathroom door.
Sharon further testified that she heard a "tunk" sound when the infant hit the
floor, and that Arquilla, when confronted about having dropped the infant,
said, "So, I don't care... . Your brother's going to get arrested because

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disagree, and conclude that there was sufficient evidence to
convict Arquilla of the charge.

The law provides that "[i]t shall be unlawful for any
person, singly or in concert, to physically abuse a family or
household member[.]" Haw. Rev. Stat. § 709-906(1). "Physical
abuse" has been defined to mean causing "bodily injury" to
another person. State v. Nomura, 79 Hawai‘i 413, 416, 903 P.2da
718, 721 (App. 1995). Meanwhile, "bodily injury" includes
"ohysical pain." Haw. Rev. Star. § 707-700.

. When considering whether there was substantial evidence
to support a conviction under the sufficiency of the evidence
standard, the evidence adduced at trial must be considered "in
the strongest light for the prosecution." State v. Richie, 88
Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998).

Even the testimony of a single percipient witness can
provide sufficient evidence to support a conviction. State v.
Pulse, 83 Hawai'i 229, 244, 925 P.2d 797, 812 (1996).
Furthermore, the trial court is entitled to draw all reasonable
inferences and deductions from the evidence adduced at trial.
State v. Hoang, 94 Hawai‘i 271, 281, 12 P.3d 371, 381 (App. 2000)
(reasonable for the trial court to infer that the victim felt
pain, "even though there was no evidence adduced at trial to that
specific effect").

In particular, a court may infer that a defendant
caused a victim to feel pain based on: (a) lay witness testimony
regarding his or her observation of physical contact between the

defendant and victim, or (b) lay witness testimony regarding his

or her observation of the victim's physical appearance. Id.;
Cozgine v. Hawaiian Catamaran, Ltd., 49 Haw. 77, 113-14, 412 P.2d
669, 691 (1966). Such an inference will stand even though it is

not supported by medical opinion provided that it is rational and
based upon proven facts. See Fukuoka v. Dodo, 43 Haw. 337, 340
(Haw. Terr. 1959).

he threw the f'ing lock at me." Sharon and Jesse's testimonies present a
reasonable basis from which the jury might have inferred the requisite intent.

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The record in this case discloses substantial evidence
to support the conviction. Sharon and Jesse both testified that
they saw Arquilla drop the infant. Sharon testified that she
heard a "tunk" sound when the infant hit the floor and the sound
of the baby's breath as "huuuh" followed by crying that was
louder than it was prior to the infant being dropped. Jesse
testified that the baby screamed upon being dropped. Officer
Silva testified that when he observed the infant within hours of
the time that she had reportedly been dropped, she appeared to be
distressed, not breathing well, her color was off, and she was
foaming at the mouth. It was the jury's prerogative to credit
this testimony over testimony from Arquilla, who denied that the
infant had been dropped, or Ben, whose testimony challenged
Sharon and Jesse's credibility.

Furthermore, this finding is not inconsistent, as
Arguiilla suggests, with the opinions of the emergency medical
service personnel, the medical doctor, or the other evidence to
the effect that the infant did not have any visible injuries.
That evidence did not establish, and did not purport to
establish, that the infant did not experience physical pain hours
earlier.

The jury was entitled to infer based on the lay witness
testimony in this case that the infant felt pain after being
dropped from waist-height onto a linoleum floor. Thus, there was

substantial evidence to support the jury's decision.

III. The Family Court's Response To The Jury's Second

Communication Was Not Prejudicially Insufficient, Erroneous

Or Misleading

At the close of the evidence, the family court

instructed the jury that "[a] person commits the offense of Abuse
of Family and Household Member if she intentionally, knowingly,
or recklessly physically abuses a family or household member."
The court explained that "'[p]hysical abuse' means causing bodily
injury to another person[,]" and that "' [blodily injury! means

physical pain, illness or any impairment of physical condition."
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Approximately twenty-four hours later, the jury sent
its second communication to the court: "Does fear on the baby's
part constitute 'pain' .. .is 'pain' defined as only physical,
or can it include psychological pain/distress [] (from fear) [?]"
Arquilla recommended that the family court explicitly instruct
the jurors that "no,'pain' is defined as only physical." The
family court, however, referred the jury back to the part of the
jury instructions explaining that "bodily injury" means physical
pain, illness or any impairment of physical condition:

I don't think that improvisation on my part is appropriate if the
instruction itself answers the question. It is common experience
that despite the fact that we are familiar with the instructions,
because we've been over them a number of times, but that doesn't
mean that they're - that they are commonplace to the jurors. They
are still dealing with sets of instructions, which while, plain on
their face are - are new to them. So, over defense objection, I'm
simply going to have the instruction that harks them back to page
9, lines 5 through 7.

The family court's decision to refer the jury back to
the original instructions was consistent with Hawai‘i Supreme
Court's reference to section 5.3 of the American Bar Association,
Standards Relating to Trial by Jury, which provides that: "If the
jury, after retiring for deliberation, desires to be informed on
any point of law .. . [t]he court shall give appropriate
additional instructions in response to the jury's request unless

the jury may be adequately informed by directing their
attention to some portion of the original instructions[.]" State
v. Laurie, 56 Haw. 664, 672, n.4, 548 P.2d 271, 277, n.4 (1976);
see also State v. Mark, 120 Hawai‘i 499, 528-29, 210 P.3d 22, 51-
52 (App. 2009) (trial court did not err in referring jury back to
the instructions given at trial since they covered the same law
as proposed by defendant and they were not prejudicially
insufficient, erroneous, inconsistent, or misleading) .

In the instant case, the definition of "bodily injury"
included in the initial instructions unambiguously provided that
the type of pain that satisfied the bodily injury requirement was
physical pain. Directing the jurors to that section of the
instructions, therefore, succinctly and correctly answered their

question.
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Arquilla's contention that the question itself
suggested that the jury did not understand that portion of the
instructions is speculative and not supported by the record.
Furthermore, as in Laurie, the record does not show that the
court's reference back to a portion of the original instruction
had confused or left an erroneous impression in the minds of the
jurors. Thus, there is no basis for vacating Arquilla's
conviction on this ground.

IV. Conclusion

For the foregoing reasons, we affirm the July 15, 2008

Judgment of Conviction and Sentence entered in the Family Court

of the First Circuit.

DATED: Honolulu, Hawai‘i, July 21, 2010.
On the briefs:

Craig W. Jerome,
Deputy Public Defender,
for Defendant-Appellant.

Loren J. Thomas,

Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.

Associate Judge