State v. Clemmer

LAW LIBFZARY

NOT FOR PUBLICA'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 30l97
IN THE INTERMEDIATE COURT OF APPEALS

0F THE sTATE oF HAwArI

sTATE oF HAwAl‘I, P1aintiff-Appe1lee
V.
JASON CLEMMER, Defendant-Appellant

99‘9 W é-d;sss:sz

APPEAL FROM THE ClRCUIT COURT OF THE FIRST CIRCUlT
(CR. NO. 08-1-l4l6)

SUMMARY DISPOSITION ORDER
Reifurth and Ginoza, JJ.)

(By: Leonard, Presiding Judge,
(Clemmer) appeals

Defendant-Appellant Jason Clemmer

from the Judgment of Conviction and Sentence filed on October 27,
(circuit court).1

2009 in the Circuit Court of the First Circuit

Clemmer was convicted of Robbery in the Second Degree, in
(HRs) § 703-341 (supp.

violation of Hawaii Revised Statutes

2009).
Clemmer claims there was insufficient

On appeal,
evidence to convict him of Robbery in the Second Degree "where

force was only employed after the theft was completed and not
Clemmer argues that the force he

during 'flight' after a theft."
used against a loss prevention officer "took place well after the

theft had ceased."
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 Clemmer's point of error as follows:

1 The Honorable Michael A. Town presided.

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HRS § 708-841 provides, in relevant part:

Robbery in the second degree. (l) A person commits the
offense of robbery in the second degree if, in the course of
committing theft or non-consensual taking of a motor
vehicle:

(a) The person uses force against the person of
anyone present with the intent to overcome that
person's physical resistance or physical power
of resistance;

(b) The person threatens the imminent use of force
against the person of anyone who is present with
intent to compel acquiescence to the taking of
or escaping with the property; or

(c) The person recklessly inflicts serious bodily injury
upon another.

(Emphasis added). HRS § 708-842 (Supp. 2009) further clarifies

that:

Robbery; "in the course of committing a theft". An act
shall be deemed "in the course of committing a theft or
non-consensual taking of a motor vehicle" if it occurs in an
attempt to commit theft or non~consensual taking of a motor
vehicle, in the commission of theft or non-consensual taking
of a motor vehicle, or in the flight after the attempt or
commission.

(Emphasis added).
As discussed in State v. Arlt, 9 Haw. App. 263, 272,

833 P.2d 902, 907 (l992), "[t]he legislature thus clearly
intended that in Hawaii, a robbery conviction may be predicated
on the use or threatened use of force or violence to retain
possession of stolen property during the flight after the theft."

Moreover, as discussed in Arlt, the commentary to HRS § 708-842

states, in pertinent part:

This provision is unusual only insofar as it makes
classification of robbery depend in part on behavior after
the theft might be said to have been accomplished. The
thief's willingness to use force against those who would
restrain him in flight strongly suggests that he would have
employed it to effect the theft had there been need for it.
No rule-of-thumb is proposed to delimit the time and space
of "fliqht," which should be interpreted in accordance with
the rationale. The concept of "fresh pursuit" will be

2

ab

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helpful in suggesting realistic bounds between the occasion
of the theft and a later occasion when the escaped thief is

apprehended.
(Emphasis added).

In A;lt, this court vacated a First Degree Robbery
conviction because there was insufficient evidence to show the
defendant was "in the course of committing a theft" when he
struck a store owner. ld¢ at 274, 833 P.2d at 908. Clemmer's
reliance on A;l;, however, is misplaced because the evidence in
this case is far different than in A;l;. In A;l;, the evidence
was undisputed that after the defendant fled a store with a
stolen tequila bottle without using force, he returned to where
the store owner was located and was in the process of returning
the bottle to the store owner when the alleged force occurred.2
lQ; at 272-73, 833 P.2d at 907.

In the instant case, Clemmer does not dispute that he
took tubes of toothpaste from the Pali Safeway store and exited
the store. Witness accounts varied as to what occurred next, but
when the evidence adduced at trial is taken in the light most
favorable to the prosecution, there was substantial evidence to
support Clemmer's conviction for Robbery in the Second Degree.

Three witnesses at trial testified about the events after Clemmer

2 In Arlt, as the defendant was handing the tequila bottle to the store
owner, the owner angrily extended his hand to receive the bottle and the
defendant thought the owner was going to hit him. The defendant claimed he
swung the bottle to deflect the owner's arm, but when the owner ducked the
bottle struck the owner's head. ;Q; at 266, 833 P.2d at 904.

3

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exited the Safeway store - loss prevention officer Justin Unutoa
(Unutoa), loss prevention officer Aiaga Jennings (Jennings), and
Clemmer. Although there was conflicting testimony, the circuit
court deemed the testimony of Unutoa as credible.

Based on Unutoa's testimony, a person of reasonable
caution could conclude that Clemmer was still in flight after
committing the theft of goods from the store because after
Clemmer exited Safeway, Unutoa followed as Clemmer walked down
Kukui Street and Unutoa ultimately approached Clemmer in front of
Hosoi Mortuary, about a block or so from Safeway and about four
or five minutes later. Unutoa testified he did not approach
Clemmer prior to that time because he was scared of Clemmer's
size and tattoos and was trying to figure out how he would stop
Clemmer. Upon approaching Clemmer, Unutoa announced who he was,
showed his badge and told Clemmer to return to the store.
Clemmer stated he did not want to return to the store and,
because it appeared to Unutoa that Clemmer was about to attempt
to run, Unutoa gripped the back of Clemmer's waistband. Clemmer
then turned around and punched Unutoa in the chest.

Based on Unutoa's testimony, there was substantial
evidence that Clemmer used force in the course of committing the
theft, i.e. during flight, by punching Unutoa after Unutoa
confronted him and was seeking to have Clemmer return to the

store. The circuit court found Unutoa's testimony credible and

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it was "of sufficient quality and probative value" to support the
circuit court's conclusion. State v. Matavale, 115 Hawafi 149,
157-58, 166 P.3d 322, 330-31 (2007) (quoting State v. Batson, 73
Haw. 2367, 248-49, 831 P.2d 924, 931 (1992)).

Therefore, based on the foregoing, the Judgment of
Conviction and Sentence filed on October 27, 2009 in the Circuit
Court of the First Circuit is affirmed.

DATED= Henolulu, Hewai‘i, september 9, 2010.

On the briefs:

William M. Domingo es d n Jud
(The Law Office of William M. Domingo)

N
for Defendant-Appellant i§

Loren J. Thomas Associate Judge
Deputy Prosecuting Attorney _
City and County of Honolulu 1 ‘ u/{

for Plaintiff-Appellee
Associate Judge