State v. Moxley

W LIBRARY
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC een

NO. 28411
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

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STATE OF HAWAI'I, Plaintiff-Appellee, v. 2] =
JAN MOXLEY, Defendant-Appellant air =
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(CR. NO. 05-1-244) =x
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SUMMARY DISPOSITION ORDER

(By: Nakamura, Chief Judge,
Circuit Court Judge Pollack,
Foley and Fujise, JJ.,

Leonard, J., and
in place of
all recused)

Defendant-Appellant Jan Moxley (Moxley) appeals

the Circuit Court of the Third Circuit's

(Circuit Court) January
29,

2007 Judgment of Conviction and Probation Sentence, nunc pro

tunc to January 23, 2007, convicting him of (1) Criminal Property

Damage in the First Degree in violation of Hawaii Revised

Statutes (HRS) § 708-820(1)(a) (Supp. 2003); (2) Criminal

Property Damage in the Fourth Degree in violation of HRS § 708-

823 (1993); (3) Assault in the Third Degree in violation of HRS §

707-712 (1993); and (4) Unauthorized Entry into Motor Vehicle in

violation of HRS § 708-836.5 (Supp. 2003) .¥”
Moxley raises two points of error on appeal. First,
Moxley argues that the Circuit Court erred in failing to grant

his motion for a mistrial and motion for reconsideration of his

motion for mistrial. Moxley sought a mistrial based on the

deputy prosecuting attorney's (DPA's) alleged serious misconduct

during his opening statement, wherein the DPA said that Appellant

"had an annoying habit of getting high on marijuana." The State

concedes that this statement may have been improper

but argues
that,

under the circumstances of this case, it was harmless

The Honorable Glenn S. Hara presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

beyond a reasonable doubt. Moxley requests that this court
vacate the judgment of conviction and remand the case for a new
trial.

Moxley also argues that the Circuit Court erred in
instructing the jury that it could convict of both Count 1
alleging Criminal Property Damage in the First Degree and Count 2
alleging Criminal Property Damage in the Second Degree (or any
included offense therein) and in entering a Judgment of
Conviction as to Count 1 and the included offense of Criminal
Property Damage in the Fourth Degree as to Count 2 when both
counts arise out of the same conduct. The State concedes that a
merger instruction should have been given, and due to its
absence, Count 2 should be vacated.

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 Moxley's points of error as follows:

(1) Prosecutorial misconduct "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). As the supreme court explained in Maluia:

whenever a defendant alleges prosecutorial misconduct, this
court must decide: (1) whether the conduct was improper; (2)
if the conduct was improper, whether the misconduct was
harmless beyond a reasonable doubt; and (3) if the
misconduct was not harmless, whether the misconduct was so
egregious as to bar reprosecution. In the course of making
these three determinations, the seriousness of the
misconduct becomes evident, and we need not attach a
separate label for our disposition to be clear.

Id. at 26, 108 P.3d at 980.

In his opening statement, the DPA stated that Moxley
"had an annoying habit of getting high on marijuana and then
constantly distracting the crew by asking questions about why
things were being done the way they were being done." In
response to Moxley's request for a mistrial, the DPA explained |

that it "honestly didn't occur to [him] that [Moxley's] smoking
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

Marijuana was a prior bad act," admitted to the Circuit Court
that Defendant's marijuana use "should have been the subject of a
404(b) motion," and that he "made a mistake."2/ The DPA's
proffered basis for his belief that Moxley's habit of using
marijuana was relevant to the case was convoluted and
unpersuasive. The DPA's statement regarding Moxley's marijuana
use was improper and constituted prosecutorial misconduct.

"In order to determine whether the alleged
prosecutorial misconduct reached the level of reversible error,
we consider the nature of the alleged misconduct, the promptness
or lack of a curative instruction, and the strength or weakness

of the evidence against defendant." State v. Agrabante, 73 Haw.

179, 198, 830 P.2d 492, 502 (1992). In this case, the DPA's
allegation of habitual marijuana use cast a negative light on
Moxley's character, compliance with the law, and credibility.

The Circuit Court's curative instruction did not clearly instruct
the jury to disregard the DPA's statement regarding Moxley's
habitual marijuana use and allowed the inappropriate comment to

be considered by the jury to the extent that it was proved:

Okay, ladies and gentlemen of the jury, we have heard the
opening statements of both counsel. I do remind you that
the statements of counsel in opening statements are not
evidence, and you are not allowed to use their statements in
terms of reaching any verdict in your case. You should,
however, consider their opening statements because, again,
to the extent they are correct in what they expect to
produce and prove, they may help you understand the
evidence.

a/ Hawai‘i Rules of Evidence Rule 404(b) provides:

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

(b) Other crimes, wrongs, or acts. Evidence of
other crimes,. wrongs, ar acts is not admissible to prove the
character of a person in order to show action in conformity
therewith . . . . In criminal cases, the proponent of
evidence to be 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.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

Finally, while the prosecution presented substantial
evidence to support Moxley's conviction, the testimony of Moxley
and the percipient witness conflicted with that of the
complainant. The relative credibility of the witnesses was
central to the jury's determination, a factor acknowledged by the
trial court and counsel. Accordingly, we cannot conclude that
the DPA's improper comment was harmless beyond a reasonable
doubt . Moxley does not argue, nor do we conclude, that the
prosecution's conduct was so egregious in this case as to bar
reprosecution.

(2) As argued by Moxley, and conceded by the State, a
merger instruction should have been given in this case. See HRS

§ 701-109(1) (e); see also, e.g., State v. Matias, 102 Hawaii 300,

305, 75 P.3d 1191, 1196 (2003) and State v. Padilla, 114 Hawai'i
507, 517, 164 P.3d 765, 775 (App. 2007).

For the foregoing reasons, the Circuit Court's January

29, 2007 Judgment of Conviction and Probation Sentence is vacated
and this case is remanded for a new trial.

DATED: Honolulu, Hawai‘i, May 11, 2010.

Earle A. Partington,
on the brief, for
Defendant -Appellant

Jefferson Malate

Deputy Prosecuting Attorney,
(Jay T. Kimura, Prosecuting
Attorney and Jack N. Matsukawa,
Deputy Prosecuting Attorney,

on the brief) for
Plaintiff-Appellee