State v. Aquino

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-OCT-2023
08:01 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
ALEXANDER AQUINO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)

Defendant-Appellant Alexander Aquino (Aquino) appeals

from the Judgment of Conviction and Sentence (Judgment), for

Unlawful Imprisonment in the First Degree (Unlawful

Imprisonment) in violation of Hawaii Revised Statutes (HRS)

§ 707-721 (2014), entered by the Circuit Court of the Third

Circuit1 on July 22, 2022.2 Aquino asserts two points of error

1 The Honorable Wendy M. DeWeese presided.

2 Aquino was charged by Information and Non-Felony Complaint
(Information) with Unlawful Imprisonment (Count 1), and Persistent Nonsupport

(continued . . .)
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on appeal: (1) the circuit court erred in denying his motion to

dismiss Count 1 with prejudice (Motion to Dismiss), for failure

to sufficiently charge the offense of Unlawful Imprisonment; and

(2) the circuit court erred in finding him guilty of Unlawful

Imprisonment because the State failed to present sufficient

evidence at trial to establish that he knowingly restrained his

stepson, L.R., under circumstances that exposed L.R. to the risk

of serious bodily injury.

Upon careful review of the record, the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we vacate the

Judgment and remand for dismissal with prejudice.

(1) We first review Aquino's contention that the

circuit court erred in denying his Motion to Dismiss for failure

to sufficiently charge all of the elements of Count 1, Unlawful

Imprisonment. "Whether a charge sets forth all the essential

elements of a charged offense is a question of law, which we

review under the de novo, or right/wrong, standard." State v.

Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177 (2009)

(cleaned up). When a criminal defendant challenges the

sufficiency of a charge in a timely manner, an appellate court

(. . . continued)
under HRS § 709-903(1) (2014) (Count 2). A two-day jury-waived trial was
held in April 2022. After the conclusion of trial, the circuit court issued
its verdict, finding Aquino guilty of Count 1 and not guilty of Count 2. The
circuit court subsequently issued Findings of Fact and Conclusions of Law
Following Bench Trial, issued its Judgment, and sentenced Aquino to a term of
imprisonment.
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will uphold that charge if: (1) it contains the elements of the

offense; and (2) it sufficiently apprises the defendant of what

the defendant must be prepared to meet. State v. Mita, 124

Hawaiʻi 385, 390, 245 P.3d 458, 463 (2010). "The relevant

inquiry, therefore, is whether or not the charge [has] provided

the accused with fair notice of the [offense's] essential

elements." Id. (citation omitted). "In general, where the

statute sets forth with reasonable clarity all essential

elements of the crime intended to be punished, and fully defines

the offense in unmistakable terms readily comprehensible to

persons of common understanding, a charge drawn in the language

of the statute is sufficient." Wheeler, 121 Hawaiʻi at 393, 219

P.3d at 1180 (cleaned up). However, "where the definition of an

offense ... includes generic terms, it is not sufficient that

the indictment shall charge the offense in the same generic

terms as in the definition; but it must state the species ...

and descend to particulars." Id. (cleaned up).

HRS § 707-721 (2014) provides, in relevant part:
(1) A person commits the offense of unlawful imprisonment
in the first degree if the person knowingly restrains
another person under circumstances which expose the person
to the risk of serious bodily injury.

"Restrain" means to restrict a person's movement in
such a manner as to interfere substantially with the
person's liberty:

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(1) By means of force, threat, or deception; or

(2) If the person is under the age of eighteen or
incompetent, without the consent of the relative,
person, or institution having lawful custody of the
person.

HRS § 707-700 (2014).

The Unlawful Imprisonment charge against Aquino

stated:

On or about the August 1, 2020 through August 21, 2021, in
Kona, County and State of Hawaiʻi, ALEXANDER AQUINO, as a
principle or accomplice, knowingly restrained another
person, L.R., a minor born in June of 2007, under
circumstances which exposed L.R. to the risk of serious
bodily injury, thereby committing the offense of Unlawful
Imprisonment in the First Degree, in violation of Section
707-721(1)(a) [sic], Hawaiʻi Revised Statutes, as amended.

The essential elements of an offense are "conduct,"

"attendant circumstances," and "results of conduct," specified

by the definition of the offense, and that negative a defense

(other than the statute of limitations, lack of venue, or lack

of jurisdiction). HRS § 702-205 (2014). "Restraint" is the

conduct element of Unlawful Imprisonment. State v. Sheffield,

146 Hawaiʻi 49, 56, 456 P.3d 122, 129 (2020).

"[A]n attendant circumstance is essentially a

circumstance that exists independently of the actor's conduct."

Wheeler, 121 Hawaiʻi at 392, 219 P.3d at 1179 (cleaned up). If

the subject of the restraint is under the age of eighteen (as

was L.R. in this case), the statutory definition of "restrain"

potentially adds an attendant circumstances element to the

offense: "without the consent of the relative, person, or

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institution having lawful custody of the person."3 This

attendant circumstances element was not set forth in Aquino's

charge.4 Accordingly, the charge was insufficient, and should

have been dismissed.

(2) Aquino challenges the sufficiency of the evidence

supporting his conviction for Unlawful Imprisonment.

Notwithstanding our conclusion that the charge was defective, it

is necessary to address the sufficiency of the evidence in order

3
HRS § 707-700 (2014) defines "restrain" by setting forth two
separate means "to restrict a person's movement in such a manner as to
interfere substantially with the person's liberty." The first is to restrict
"[b]y means of force, threat, or deception[.]" The second, alternative
definition of restrain "if the person [restrained] is under the age of
eighteen or incompetent," is to restrict "without the consent of the
relative, person, or institution having lawful custody of the person." Where
the subject of the alleged restraint is a minor or incompetent, the State can
potentially charge the defendant pursuant to either or both definitions of
restrain.

4
The declaration of HCPD [Hawaiʻi County Police Department] police
detective Brandon Mansur filed (under seal) along with, but not attached to,
the information and non-felony complaint, appears to indicate that L.R.'s
mother, Amy Aquino, consented to Alexander Aquino's restraint of L.R. This
does not cure the insufficiency of the charging document because it was
possible that the State, which had charged Aquino with "knowingly
restrain[ing]" "a minor," could nevertheless have attempted to set forth a
theory at trial that restraint of L.R. was without mother's consent.

Charging documents must sufficiently allege all of the
essential elements of the offense charged. If a charging
document omits an essential element of an offense, it fails
to state an offense, and a conviction based upon it cannot
be sustained no matter what other information the defendant
may have received from the State.
Given that the ICA treated the Traffic Proviso as an
attendant circumstances element of HRS § 291C-12(a), it
should not have looked beyond the four corners of the
indictment in evaluating Van Blyenburg's arguments as to
Count 1.

State v. Van Blyenburg, 152 Hawaiʻi 66, 70 n.3, 520 P.3d 264, 268 n.3 (2022)
(cleaned up).

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to determine whether Aquino may be recharged and retried.

State v. Davis, 133 Hawaiʻi 102, 104, 324 P.3d 912, 914 (2014)

("a reviewing court is required to address an express claim of

insufficiency of the evidence prior to remanding for a new trial

based on a defective charge"). Under HRS § 707-721(1) (2014),

the State had the burden of proving at trial that Aquino

"knowingly restrain[ed] [L.R.] under circumstances which

expose[d] [L.R.] to the risk of serious bodily injury." Aquino

specifically challenges findings of fact (FOF) 15, 16, 17, 26,

and 27, which find that,

15. The Defendant clearly knew of [L.R.'s] fall and that
an injury had resulted. And, while L.R. testified he
does not know why he decided to climb off the porch
and that it was a random impulse, the fact remains the
escape attempt and fall resulting in injury occurred
while L.R. was being chained up by both parents in the
same manner as he was between August 1, 2020 and
August 21, 2021.

16. Also, L.R. testified that he repeatedly told both
Defendant and his mother he did not like being chained
up. Yet despite this Defendant and [mother] continued
to chain up L.R., even after his fall in 2020.

17. Thus, the evidence shows Defendant knew the risk of
harm associated with continuing to chain up L.R. after
the 2020 escape and fall, namely that L.R. might
attempt to escape again by climbing off the lanai and
hurt himself.
. . .

26. Further, the Court finds beyond a reasonable doubt
that Defendant knew L.R. was exposed to the risk of
another fall off of the lanai as had happened in 2020.
The circumstances that existed at the time of the 2020
fall continued to exist between August 1, 2020 and
August 21, 2021. Defendant was still requiring L.R.
to be chained. L.R. was still prohibited from being
in the house without Defendant[']s permission. L.R.
was still subjected to yelling and discipline by
Defendant. The only exit off the lanai still was only
through the house, where L.R. was not allowed to be
without Defendant[']s permission. L.R. had repeatedly

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told Defendant he did not like being chained up. And,
L.R. had in fact fallen off the lanai while trying to
escape once before, resulting in serious bodily
injury.

27. The credible evidence shows beyond a reasonable [sic]
Defendant knew that he was exposing L.R. to the risk
of serious bodily injury when he continued to restrain
L.R. on the lanai between August 1, 2020 and
August 21, 2021.

(Emphasis added.)

We review Aquino's contention of error under the

following standard of review,

[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.

State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(citations omitted).

"Substantial evidence" is "credible evidence which is

of sufficient quality and probative value to enable a person of

reasonable caution to support a conclusion." Id. at 49, 237

P.3d at 1115 (citation omitted). In a bench trial, the trial

judge, as the trier of fact, "is free to make all reasonable and

rational inferences under the facts in evidence, including

circumstantial evidence." State v. Batson, 73 Haw. 236, 249,

831 P.2d 924, 931 (1992) (citation omitted).

We conclude that the record does not contain

sufficient evidence to support Aquino's Unlawful Imprisonment

conviction. L.R. testified at trial that, from the time he was

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"[t]en, eleven, or twelve," Aquino and L.R.'s mother would chain

him to the porch by wrapping and padlocking one end of a metal

chain around his neck, and padlocking the other end of the chain

to the porch. When wrapped around L.R.'s neck, L.R. testified

that "[the chain] would be about 6 or 7 inches long so I would

still have a good amount of move space for my head to get into

comfort." L.R. would be chained at night, and "let loose during

the day." L.R. "didn't like having to be chained up," and told

this to Aquino "[a] [c]ouple times."

The porch was situated approximately 17 feet above the

ground. L.R. fell from the porch and injured his back in 2020.

He had been, at the time, released from the chain for dinner.

L.R. explained that, "I don't know what came over me, but I

decided to try to jump off the porch so tried that[,]" and "[I]

kind of tried to climb down but I slipped and fell off." When

questioned further as to why he tried to "jump down or get down"

from the porch, L.R. testified that, "I forget, to be honest. I

don't even think I knew why. Just a random impulse."

L.R. sustained an injury to his back as a result of

the fall. The record shows that Aquino was aware of L.R.'s

injury, and allowed him to remain unchained for a period of

time, after which Aquino resumed chaining L.R. at night. L.R.

again climbed down from the porch in August 2021, this time

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without injury, and subsequently "ran away" and hitchhiked.

L.R. testified that he ran away because he "was tired of being

chained up."

The record evidence set forth above shows that L.R.

injured himself in 2020 jumping down from the porch, on "a

random impulse," while unchained. L.R. did not, indeed could

not (because of the length of the chain and its location on the

porch), have climbed down from the porch while chained. The

finding that "the [2020] escape attempt and fall resulting in

injury occurred while L.R. was being chained up" (FOF 15)

(emphasis added), is thus clearly erroneous and not supported by

sufficient evidence. The record evidence does not support a

reasonable and rational inference that Aquino's act of chaining

L.R. was "under circumstances" that "exposed" L.R. to "the risk

of serious bodily injury."5

We conclude that FOFs 15, 16, 17, 26, and 27, and

Aquino's conviction for Unlawful Imprisonment, are not supported

5 "Serious bodily injury" is defined as "bodily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ." HRS § 707-700 (2014). Although L.R. testified that he
"didn't like having to be chained up[,]" he also testified that the chain did
not hurt him. He testified that nothing had happened to him while he was
chained, aside from "a slap" and being "whacked . . . on my legs if something
got broken, but that was before I was almost always chained up."
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by sufficient evidence. We therefore vacate the Judgment and

remand for dismissal with prejudice.

DATED: Honolulu, Hawaiʻi, October 6, 2023.

On the briefs:
/s/ Katherine G. Leonard
R. Hermann Heimgartner, Presiding Judge
For Defendant-Appellant.
/s/ Keith K. Hiraoka
Charles E. Murray, III, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai‘i, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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