State v. Moore

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NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPGRTS AND PACIFIC REPQRTER
No. 30001
:N THE INTERMEDIATE coURTmoF APPEALs
oF THE sTATE oF HAwArI

STATE OF HAWAFI, Plaintiff-Appellee, v.
RICKY MOORE, Defendant-Appellant

g; ga m m litem

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 08-l-l252)

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Fujise and Leonard, JJ.)

Defendant-Appellant Ricky Moore

(Moore) appeals the
Circuit Court of the First Circuit's

(Circuit Court’s)

July 22,
2009 Judgment of Conviction and Sentence,

which convicted him of
Robbery in the First Degree in violation of HawaFi Revised
statutes (HRs) § 708-340(1)(b)(ii) (supp. 200e).M

d Moore raises the following points of error on appeal:
(l) there was insufficient evidence to support the conviction for
Robbery in the First Degree because the evidence failed to

establish the requisite intent; and (2) the Deputy Prosecuting

Attorney's (DPA's) improper comments to the jury during rebuttal

embodied the personal opinion of the DPA and, therefore,

€constituted prosecutorial misconduct which was not harmless
beyond a reasonable doubt.

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 Moore's points of error as follows: '

(l)

Moore argues that there was insufficient evidence
to support the conviction for Robbery in the First Degree because

the evidence failed to establish the requisite intent.

The Honorable Richard K. Perkins presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Specifically, Moore argues that "the threat he used with the
scissors was not to aid in the theft, but to aid in self-
protection" because of the "simultaneous threats and racial
slurs" by the Food Pantry employees.

HRS § 708-840(l)(b)(ii) states in relevant part:

§ 708-840 Robbery in the first degree. (l) 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 vehicles

(b) The person is armed with a dangerous instrument and:

(ii) The person threatens the imminent use of force
against the person of anyone present with intent
to compel acquiescence to the taking of or
escaping with the property[.]

(Emphasis added.)

viewing the evidence in the light most favorable to the
prosecution, which we must do, there was substantial credible
evidence to enable a person of reasonable caution to support the
conclusion that Moore threatened the imminent use of force
against the Food Pantry employees with the intent to compel
acquiescence to the taking of or escaping with the steaks. Three
witnesses testified, inter alia, that when Moore took out a
scissors blade and began back pedaling out of Food Pantry with
the steaks, Moore threatened that he would "kill" or "stab" them
if they tried to stop him. The Food Pantry employees all
testified that they did not threaten Moore or use racial slurs
against him. We conclude that there was sufficient evidence of
the requisite intent for Robbery in the First Degree and the
Circuit Court did not err in denying Moore's motion for judgment
of acquittal.

(2) Moore argues that the DPA's reference in the
following statement to "the truth, the honest truth," made during
the rebuttal argument, was improper and constituted prosecutorial

misconduct:

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

The fact of the matter is they're saying, hey, believe Zang
Wong, believe John Ellis for these things because, hey,
those guys were honest. It's not their job to prove the
State's case to you. It's not their job to try to win a
conviction. They came before you and they told you the

truth, the honest truth. When they were asked, hey --

The Hawafi Supreme Court has "held that prosecutors
are bound to refrain from expressing their personal views as to a
defendant's guilt or the credibility of witnesses." State v.
Nakoa, 72 Haw. 360, 37l, 817 P.2d lO60, 1066 (l99l) (citation
omitted). However, the DPA's comment began with "the fact of the
matter is they're saying, hey, believe Zane Wong . . ." This

followed defense counsel's argument that, inter alia:

Based on the State's own witness - - on their own witnesses,
there was never any threats specific towards Zane Wong[.]

You've heard the testimony that Ricky was - - it looked like
Ricky was just trying to get away. Okay, that's what
Shannon Nishimura said, that's what Zane Wong said, and
that's what John Ellis said,

The bottom line is this: Even according to Zane Wong's own
testimony he was just walking normally, okay. . . . He
wasn‘t trying to stab Zane Wong,

lt appears that the DPA was merely recharacterizing and
responding to defense counsel's closing argument that the State's
witnesses should be believed and that their testimony favors the
defendant's theory of defense, i.e., that Moore was just trying
to get away. The DPA was not asserting his personal opinion on
the credibility of the State's witnesses. Accordingly,
particularly when viewed in the context of the closing arguments
as a whole, the DPA's remarks were not improper and did not

deprive Moore of a fair trial.

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For these reasons, we affirm the Circuit Court's July
22, 2009 Judgment of Conviction and Sentence.

DATED: Honolulu§ HawaFi, May l0, 20lO.

On the briefs: §§ ‘5%f ;zz 6

Linda C.R. Jameson Chief Judge

for Defendant-Appellant 2

Delanie D. Prescott-Tate

Deputy Prosecuting Attorneyp Associate Judge
City and County of Honolulu
for Plaintiff-Appellee