State v. Figueroa

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-DEC-2023
08:20 AM
Dkt. 92 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
KEKOA FIGUEROA, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant Kekoa Figueroa (Figueroa) appeals

from the Judgment of Conviction and Probation Sentence

(Judgment), filed on February 1, 2022, and amended on

December 27, 2022 by the Circuit Court of the First Circuit

(circuit court).1 For the reasons set forth below, we vacate the

circuit court's Judgment, and this case is remanded for a new

trial.

1 The Honorable Trish K. Morikawa presided.
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In January 2020, Figueroa was charged via Felony

Information, with Unauthorized Control of Propelled Vehicle

(UCPV), in violation of Hawaii Revised Statutes (HRS) § 708-836

(2014).2 The Felony Information alleged that,

On or about January 8, 2020, in the City and County of
Honolulu, State of Hawai[‘]i, Kekoa Figueroa did
intentionally or knowingly exert unauthorized control over
a propelled vehicle, by operating the vehicle without the
consent of German Dalo, owner of said vehicle, thereby
committing the offense of Unauthorized Control of Propelled
Vehicle, in violation of Section 708-836 of the Hawaii
Revised Statutes.

Prior to trial, Figueroa filed Defendant's Motion to

Suppress Evidence (Motion to Suppress), dated June 12, 2020,

requesting that the circuit court suppress and preclude from use

at trial the evidence obtained by the Honolulu Police Department

(HPD) during Figueroa's brief investigative detention on

January 8, 2020. Figueroa contended that Officers Lyle Maiava

(Officer Maiava) and Christopher Chu's (Officer Chu) "prolonged

detention of Defendant for purposes other than to address a

traffic infraction, to wit, failure to use turn signal, was an

2 HRS § 708-836 (2014) states, in pertinent part,

Unauthorized control of a propelled vehicle in the
first degree. (1) A person commits the offense of
unauthorized control of a propelled vehicle in the first
degree if the person intentionally or knowingly exerts
unauthorized control over another's propelled vehicle by
operating the propelled vehicle without the owner's consent
or by changing the identity of the propelled vehicle
without the owner's consent.

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illegal seizure," and that the introduction of evidence obtained

during the detention thus violated his rights under Article I,

Sections 5 and 7 of the Hawaiʻi State Constitution, and the

Fourth, Fifth, and Fourteenth Amendments of the United States

Constitution.

The circuit court denied Figueroa's Motion to

Suppress, after hearing the motion on January 7, 2021, and

entered its Findings of Fact, Conclusions Of Law, and Order

Denying Defendant's Motion to Suppress Evidence (Order) on

February 19, 2021. In its Order, the circuit court made the

following unchallenged findings of facts:

1. The Court finds that State's Witnesses, Officers
Christopher Chu ("Officer Chu") and Lyle Maiava ("Officer
Maiava") were credible.

2. On January 8th, 2020, at about 5:30 pm, HPD Officer
Chu and HPD Officer Maiava were on duty in the City and
County of Honolulu in a high crime area.

3. While operating an unmarked vehicle on a Honolulu
roadway and making checks, Officer Chu and Officer Maiava
observed a male later identified as Kekoa Figueroa
("Defendant") operating a moped bearing Hawai[‘]i Decal
"Z18009."

4. Defendant was observed by the officers turning onto
Ke[‘]eaumoku Street without using a turn signal.

5. Officer Chu, who was seated in the passenger seat of
the unmarked vehicle, observed that the moped was being
operated without any keys in the ignition. Officer Maiava
independently observed the same.

6. Officer Chu and Officer Maiava continued to follow
the Moped, which turned into the Walmart parking lot
located on Ke[‘]eaumoku Street. Without being pulled over
by the HPD officers, the Defendant proceeded towards the
entrance of Walmart and parked the moped near some soda
machines.
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7. Suspecting Defendant was operating the moped without
authorization, Officer Chu and Officer Maiava parked their
vehicle and approached Defendant on foot.

8. While Officer Chu approached and spoke to the
Defendant, Officer Maiava immediately conducted checks upon
the moped and verified that the moped bearing Hawai[‘]i
Decal "Z18009" is registered to a German Dalo ("Dalo").

9. Officer Maiava contacted Dalo's phone number; Dalo
related that he is still the current owner of the moped,
that he does not know a Kekoa Figueroa and that he did not
give Kekoa Figueroa permission to use, operate, or possess
his moped.

10. Based on the phone records of Officer Chu's cell
phone (that were entered into evidence as State's exhibit
#4), the phone call from Officer Maiava to Dalo's phone
number was initiated at 5:33 pm and lasted 6 minutes.

Based on the above-factual findings, the circuit court

made the following conclusions of law:

1. The Perez test is controlling for investigative
stops such as in the instant case in determining whether
the stop/detention was justified. State v. Perez,
111 Hawaiʻi 392 (2006).

2. The suspicion of HPD Officer Chu and HPD Officer
Maiava (before approaching Defendant) that Defendant was
operating the moped without authorization was reasonable.

3. The investigative actions by the HPD officers were
reasonable at their inception.

4. The time period from when HPD Officers Chu and
Maiava first saw Defendant until the end of the phone call
to Dalo did not last longer than was necessary to
effectuate the purpose of the detention (the investigation
of the possible stolen moped), and was limited in scope to
that which justified the initial stop.[3]

3 With respect to the timing, the circuit court further explained,

At 5:30 the officers see the defendant operating the moped.
The defendant had to drive to Walmart, park the moped. The
officers had to park their car, walk to the defendant, get
the VIN, run the VIN, and call the registered owner.

(continued...)

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5. The investigation for unauthorized control of a
propelled vehicle and any seizure of Defendant pursuant
thereto, was reasonably related in scope to the
circumstances, which justified the interference in the
first place.

(Footnote added.)

The matter proceeded to a jury trial. At trial,

Figueroa raised, inter alia, a mistake-of-fact defense. Counsel

for the State and Figueroa both agreed to the mistake-of-fact

jury instruction set forth in the Court's Special Instruction

No. 3, as modified by agreement, and the circuit court so

instructed the jury. The jury reached its verdict on May 3,

2021, finding Figueroa guilty as charged of UCPV. The circuit

court entered its Judgment sentencing Figueroa to four years of

probation with special conditions.

Figueroa raises two points of error on appeal. He

contends: (1) "[t]he trial court erroneously concluded that the

police had reasonable suspicion from the inception to detain

Figueroa for purposes of investigating whether the moped was

3(...continued)

All of that occurred -- if the call was made at 5:33,
all of that occurred in three minutes. Therefore, a good
chunk of that three minutes was following the defendant,
parking and approaching the defendant. Thereafter, Officer
Maiava talked to the registered owner for six minutes.

Based on that information, the detention of the
Defendant did not last longer than was necessary to
effectuate the investigation of the possible stolen moped.

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stolen"; and (2) "[t]he [deputy prosecuting attorney]'s improper

remarks during his rebuttal closing argument substantially

prejudiced Figueroa's right to a fair trial."

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 Figueroa's contentions of error as follows:

(1) We review the circuit court's denial of Figueroa's

Motion to Suppress de novo to determine whether that ruling was

"right" or "wrong." State v. Spillner, 116 Hawaiʻi 351, 357,

173 P.3d 498, 504 (2007) (citation omitted).

The proponent of the motion to suppress has the burden of
establishing, by a preponderance of the evidence, that the
statements or items sought to be excluded were unlawfully
secured and that his or her right to be free from
unreasonable searches or seizures was violated under the
fourth amendment to the United States Constitution and
article I, section 7 of the Hawaiʻi Constitution.

Id. (citation omitted).

An investigative search is supported by the law

enforcement officer's reasonable suspicion for conducting the

investigative search. State v. Perez, 111 Hawaiʻi 392, 398, 141

P.3d 1039, 1045 (2006). "[T]he subject matter and intensity of

the investigative detention must be limited to that which is

justified by the initial stop." State v. Iona, 144 Hawaiʻi 412,

417, 443 P.3d 104, 109 (2019) (cleaned up).

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Reasonable suspicion exists where the officer can

"point to specific and articulable facts which, taken together

with rational inferences from those facts," demonstrate that

"measured by an objective standard, a man of reasonable caution

would be warranted in believing that criminal activity was afoot

and that the action taken was appropriate." Perez, 111 Hawaiʻi

at 398, 141 P.3d at 1045 (cleaned up). A court determines

whether reasonable suspicion exists based on consideration of

the "totality of the circumstances." Spillner, 116 Hawaiʻi at

357, 173 P.3d at 504 (citations omitted).

The record reflects that Officers Maiava and Chu had

reasonable suspicion to carry out their brief investigative

detention of Figueroa. Officers Maiava and Chu testified to

observing that there was no key in the ignition of the moped

that Figueroa was riding. Officer Chu testified that a moped

being operated without a key was "very unusual," and that "from

past experiences [the lack of a key] usually is a key indicator

that the vehicle might possibly be stolen." The officers

approached Figueroa after he had pulled into the Walmart parking

lot and parked the moped. They introduced themselves as police

officers, obtained Figueroa's name, and then visually observed

and ran checks on the moped's vehicle identification number

(VIN). Figueroa explains in his opening brief that "the VIN []
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was openly indicated on the frame of the moped and the decal

affixed to the rear of the moped." Officer Chu testified that

the VIN could be observed just by looking at the moped. Officer

Maiava testified that the VIN is readily observable because it

is "visible to anybody that looks for it."

The officers learned, based on their check of the

moped's VIN that, while not reported stolen, the moped was not

registered to Figueroa. Officer Maiava contacted the registered

owner of the moped, German Dalo, by telephone. Dalo informed

Officer Maiava, during a six-minute phone call at 5:33 p.m.,

that Figueroa did not have permission to operate the moped.

Officers Maiava and Chu testified that they arrested Figueroa

once they had verified that Figueroa did not have permission to

operate the moped, and that Dalo wanted to prosecute.

Based on the totality of the circumstances, we

conclude that the brief detention of Figueroa was reasonable,

did not last longer than necessary to investigate whether the

moped was stolen, and was limited to effectuating the purpose of

the detention to investigate whether the moped was stolen.

Iona, 144 Hawaiʻi at 417, 443 P.3d at 109; Spillner, 116 Hawaiʻi

at 357, 173 P.3d at 504. The circuit court did not, on this

record, err in denying Figueroa's Motion to Suppress.

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(2) We review Figueroa's contention of prosecutorial

misconduct under the harmless beyond a reasonable doubt

standard. State v. Mainaaupo, 117 Hawaiʻi 235, 247, 178 P.3d 1,

13 (2008). This court must first determine,

(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.

State v. Udo, 145 Hawaiʻi 519, 534-35, 454 P.3d 460, 475-76

(2019) (citation omitted). In addressing whether improper

conduct is harmless beyond a reasonable doubt, this court will

consider "the nature of the alleged misconduct, the promptness

or lack of a curative instruction, and the strength or weakness

of the evidence against the defendant." Id. at 535, 454 P.3d at

476 (citation omitted). "Prosecutorial misconduct is not

harmless beyond a reasonable doubt if there is a reasonable

possibility that the misconduct complained of might have

contributed to the conviction." Id. (cleaned up).

Figueroa specifically contends that the following

misstatement of law, made by the deputy prosecuting attorney

during rebuttal closing argument, was substantially prejudicial,

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BY [Deputy prosecuting attorney]:

Defense counsel argues that Mr. Figueroa thought that
this moped was, quote, "trash." Well, it's not hard to
figure out if that moped belongs to somebody. He
understands, he testified that he understands the concept
of registration and title. He made no attempt to find out
if it was trash or abandoned in any way.

Now, defense counsel, he harps on mistake of fact.
So looking at page 20, he's saying that he thought that the
moped was abandoned, but when we look at the elements of
the offense, he needs to have permission from the owner.
This isn't a case where he's saying that, you know, Jojo
sold me the moped or some other person gave me permission,
I'm mistaken, I thought –- I thought that the other person
had authorization. This isn't that kind of situation.
This is a situation where he found the moped, he didn't get
permission from anybody. So the mistake of fact
instruction doesn't apply because he's doing it without the
owner's permission. He didn't seek permission from
anybody. He didn't seek permission from not a single
person. So for mistake of a fact –- fact to apply, he
would have to say I got permission from Bobby down the
street to drive this moped, and you would have to believe
that testimony. That isn't the case here. He sought
permission from literally no one, and the law requires him
to seek permission.

[Defense counsel]: Objection, misstates the law.

THE COURT: Sustained.

[Deputy prosecuting attorney]: The bottom line is
that is not the situation in this case. He's not mistaken
of fact. He knew that he –- he knew that he was operating
that moped without permission.

Defense counsel says he didn't have a chance to,
like, try to get legal ownership by registering. The
defendant himself testified that he had it for multiple
weeks prior to driving it. He had every chance and all the
time –- and he –- he had plenty of time to seek permission
or seek –- figure out who the owner was.

So in light of all that, the State would ask the
ladies and gentlemen of the jury to reach the only verdict
that is appropriate, that is guilty as charged. Thank you.

(Emphasis added.)

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On appeal, Figueroa contends that the circuit court

erred because, although it sustained Figueroa's objection to the

above remarks, it did not sua sponte strike those remarks and/or

issue a curative instruction. Figueroa's contention has merit.4

4 The circuit court correctly instructed the jury on mistake-of-
fact, prior to the prosecutor's rebuttal closing argument, as follows,

In any prosecution for an offense, it is a defense
that the defendant engaged in that –- in the prohibited
conduct under ignorance or mistake of fact if the ignorance
or mistake of fact –- sorry –- if the ignorance or mistake
negates the state of mind required to establish an element
of the offense.

Thus, for example, a person is provided a defense to
a charge based on an intentional or knowing state of mind
if the person is mistaken (either reasonably, negligently,
or recklessly) as to a fact that negates the person's state
of mind required to establish an element of the offense;
however, a reckless mistake would not afford a defense to a
charge based on a reckless state of mind.

The burden is upon the prosecution to prove beyond a
reasonable doubt that the defendant was not ignorant or
mistaken as to a fact that negates the state of mind
required to establish an element of the offense. If the
prosecution fails to meet its burden, then you must find
the defendant not guilty.

(Emphasis added.) This instruction, along with the circuit court's general
instruction that the jury must disregard any argument that "misstate[d] these
instructions," did not cure the prosecutor's subsequent misstatement of the
law.

The prosecutor did not make a curative statement
specifically directed at correcting the improper
definitions that had been provided. Additionally, no
curative instruction was given by the circuit court.
Although the court generally instructed the jury prior to
closing arguments that "[s]tatements or remarks made by
counsel are not evidence," this instruction did not
neutralize the prosecutor's oral amendment to the
accomplice instruction, which misstated the requirements of
the law.

State v. Basham, 132 Hawaiʻi 97, 111, 319 P.3d 1105, 1119 (2014).
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The circuit court's failure to cure this misstatement was not

harmless beyond a reasonable doubt.

Mainaaupo explained that the elements of UCPV under

HRS § 708-836 are: "(1) the person's conduct of exerting control

over a thing by operating it, (2) the attendant circumstance of

the thing being 'another's' (i.e., the registered owner's)

propelled vehicle, and (3) the attendant circumstance of the

person's control/operation being without the registered owner's

consent." 117 Hawaiʻi at 249, 178 P.3d at 15 (emphasis and

bracketed text omitted). Thus, one of the elements of UCPV is

the attendant circumstance of the vehicle being "another's."

Here, Figueroa's defense was based on an alleged

mistake-of-fact as to the attendant circumstance of the moped

being "another's"; Figueroa testified at trial that he found the

moped in the "Ala Wai river" and that he mistakenly believed it

to have been "trash." The deputy prosecuting attorney, in

rebuttal closing argument, misstated to the jury that "the

mistake of fact instruction doesn't apply" because, even if

Figueroa "found the moped," he did not have "permission from

anybody" to take the moped:

This is a situation where he found the moped, he didn't get
permission from anybody. So the mistake of fact
instruction doesn't apply because he's doing it without the
owner's permission. He didn't seek permission from
anybody.

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This was an incorrect characterization of Figueroa's mistake-of-

fact defense, which did not claim a factual mistake about the

consent-from-registered-owner element, but asserted Figueroa's

belief that the moped no longer belonged to another, and thus,

consent could not or need not be obtained.5 And because these

misstatements about the mistake-of-fact defense were made during

rebuttal closing argument, they were effectively the final words

to the jury regarding that defense. "If there is a reasonable

possibility that error might have contributed to a conviction in

a criminal case, then the error cannot be harmless beyond a

reasonable doubt, and the conviction must be set aside."

State v. Klinge, 92 Hawaiʻi 577, 583, 994 P.2d 509, 515 (2000)

(citation omitted). We conclude, on this record, that the

prosecutor's misstatement of law was not harmless beyond a

reasonable doubt.

For the foregoing reasons, the Circuit Court of the

First Circuit's Judgment of Conviction and Probation Sentence,

5 The prosecutor misstated to the jury that Figueroa could not,
based on the evidence, have acted under a mistake-of-fact. If the jury
believed Figueroa's testimonial account -- i.e., that he took what he
believed to be "trash" from the "Ala Wai river" -- it could have also found
that Figueroa was acting under a mistake-of-fact, as properly defined.
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filed on February 1, 2022, and amended on December 27, 2022, is

vacated, and this case is remanded for a new trial.

DATED: Honolulu, Hawaiʻi, December 22, 2023.

On the briefs:
/s/ Lisa M. Ginoza
William H. Jameson, Jr., Chief Judge
Deputy Public Defender
For Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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