State v. Akiu

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-SEP-2025
08:04 AM
Dkt. 70 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JACOBE AKIU, Defendant-Appellant

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

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

Jacobe Akiu appeals from the Judgment of Conviction and
Sentence entered by the Circuit Court of the First Circuit on
July 10, 2024.1 We affirm.
A grand jury indicted Akiu for Kidnapping his former
girlfriend SK; Abuse of Family or Household Members; Assault in
the Third Degree of SK's son, TD; Burglary in the First Degree,
Attempted Assault Against a Law Enforcement Officer (LEO) in the
First Degree, and five counts of Violation of a Temporary
Restraining Order (TRO). He pleaded not guilty as to all counts.
He later changed his plea on the five TRO violation counts to no
contest.

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The Honorable Rowena A. Somerville presided.
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A jury found Akiu guilty of Kidnapping, Abuse of Family
or Household Members in the Presence of a Household Member Less
than 14 Years of Age, Assault in the Third Degree, and Criminal
Trespass in the First Degree as an included offense of Burglary
in the First Degree. Akiu was found not guilty of Attempted
Assault Against a LEO. He was sentenced to concurrent terms of
20 years for Kidnapping, 5 years for Abuse of Family or Household
Members, and 1 year on each of the other counts on which the jury
found Akiu guilty. This appeal followed.
Akiu states three points of error:
(1) Akiu contends "[t]here was insufficient evidence
presented at trial to convict Akiu of the crimes charged." We
consider the trial evidence "in the strongest light for the
prosecution" to determine "whether there was substantial
evidence" to support the verdict. State v. Williams, 149 Hawai#i
381, 392, 491 P.3d 592, 603 (2021).
Akiu testified at his trial. So did SK, TD, and
several other witnesses. The testimony of SK, TD, and the other
witnesses, and the State's photographic evidence, support the
verdict. Akiu argues the jury should have believed him, not the
other witnesses and photographs. But we may not "interfere with
the decision of the [jury] based on the witnesses' credibility or
the weight of the evidence." State v. Mitchell, 94 Hawai#i 388,
393, 15 P.3d 314, 319 (App. 2000). There was sufficient evidence
to support the verdict.
(2) Akiu contends the trial court erred by giving the
jury an Arceo instruction, also called a unanimity instruction.
A unanimity instruction is appropriate when the State introduces
evidence of multiple acts to prove one charged offense. In such
a case, the State must either elect one act to establish the
conduct element of the offense, or the jury must be instructed
that each of them must agree the same act has been proved beyond
a reasonable doubt. State v. Arceo, 84 Hawai#i 1, 32–33, 928
P.2d 843, 874–75 (1996).

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Here, Akiu was charged with kidnapping SK "[o]n or
about September 26, 2022, to and including September 30, 2022[.]"
Kidnapping was thus charged as a continuing offense — that is, "a
continuous, unlawful act or series of acts set on foot by a
single impulse and operated by an unintermittent force, however
long a time it may occupy, or an offense which continues day by
day[.]" Arceo, 84 Hawai#i at 18, 928 P.2d at 860 (cleaned up).
Because Akiu was charged with a continuing offense, a unanimity
instruction was not required. State v. Mundon, 121 Hawai#i 339,
350, 219 P.3d 1126, 1137 (2009).
Just because a unanimity instruction was not required
does not mean it was error to give one. "[T]he real question
becomes whether there is a reasonable possibility that error
might have contributed to conviction." State v. Nichols, 111
Hawai#i 327, 334, 141 P.3d 974, 981 (2006).
The jury was instructed:

The law allows the introduction of evidence for the
purpose of showing that there is more than one act upon
which proof of an element of an offense may be based. In
order for the prosecution to prove an element, all twelve
jurors must unanimously agree that the same act has been
proved beyond a reasonable doubt.

The State presented substantial evidence that Akiu
intentionally or knowingly restricted SK's movement to interfere
substantially with SK's liberty by force, threat, or deception,
with intent to inflict bodily injury upon SK or subject SK to a
sexual offense, "by a series of acts constituting a continuing
course of conduct" from September 26 to 30, 2022. See Hawaii
Revised Statutes §§ 707-700 (2014), 707-720(1)(d) (2014); Mundon,
121 Hawai#i at 351, 219 P.3d at 1138.
The unanimity instruction required all twelve jurors to
agree on which of Akiu's acts restricted SK's liberty, rather
than simply agree on Akiu's course of conduct from when he got SK
and TD from Makapu#u on September 26 until the police arrived at
the Kāne#ohe McDonald's four days later. That increased the
State's burden of proof, reducing the likelihood of a conviction.

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There was no prejudice to Akiu. The Circuit Court's giving the
unanimity instruction was harmless error.
(3) Akiu contends there was prosecutorial misconduct
because the State argued "a continuing course of conduct after
electing a single incident of restraint." Prosecutorial
misconduct is "a legal term of art that refers to any improper
action committed by a prosecutor, however harmless or
unintentional." State v. Willis, 156 Hawai#i 195, 204, 572 P.3d
668, 677 (2025).
Here, Akiu moved for judgment of acquittal after the
State rested. He argued "there's insufficient evidence of
intentional knowing restraint of" SK.
The State responded, "there are multiple instances
within the testimony where you have certainly threats of force to
restrain [SK]. Our argument is that throughout the entire course
of the time, those threats were hanging over her head as she felt
restrained." (Emphasis added.)
Akiu stated, "I see where the State's coming from.
They're trying to say it's a psychological restraint."
The Circuit Court noted, "I think they're arguing both,
actually." The Circuit Court denied Akiu's motion.
Contrary to Akiu's argument, the State did not "elect[]
a single incident of restraint."
During closing, the State argued: "From September 26,
2022, at night, when SK was picked up with TD, to September 30th,
2022, when she finally summoned the courage and asked meekly to a
bystander to please call the police because her ex-boyfriend is
holding her and her son against their will, throughout that
entire period of time, the defendant kidnapped [SK] and [TD.]"
That was consistent with the State's opposition to Akiu's motion
for judgment of acquittal.
There was no prosecutorial misconduct.

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The July 10, 2024 Judgment of Conviction and Sentence
is affirmed.
DATED: Honolulu, Hawai#i, September 3, 2025.

On the briefs:
/s/ Keith K. Hiraoka
Walter J. Rodby, Presiding Judge
for Defendant-Appellant.
/s/ Sonja M.P. McCullen
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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