State v. Faria

60 P.3d 333, 100 Haw. 383, 2002 Haw. LEXIS 853
CourtHawaii Supreme Court
DecidedDecember 30, 2002
Docket24035
StatusPublished
Cited by19 cases

This text of 60 P.3d 333 (State v. Faria) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Faria, 60 P.3d 333, 100 Haw. 383, 2002 Haw. LEXIS 853 (haw 2002).

Opinions

Opinion by

MOON, C.J.

Defendant-appellant Gary Faria appeals from the January 11, 2001 judgment of conviction and sentence of the Circuit Court of the First Circuit, the Honorable Gerald H. Kibe presiding, adjudging him guilty of Unauthorized Entry into Motor Vehicle (UEMV), in violation of Hawai'i Revised Statutes (HRS) § 708-836.5 (2000), which states in pertinent part:

[a] person commits the offense of unauthorized entry into motor vehicle if the person intentionally or knowingly enters or remains unlawfully in a motor vehicle with the intent to commit a crime against a person or against property rights.

On appeal, Faria contends that the trial court abused its discretion when it: (1) failed to give a jury instruction on what constitutes an unlawful “entry” into a motor vehicle; (2) gave a jury instruction on assault in the third degree where assault was not set forth in the indictment nor disclosed before or during the trial; and (3) refused to allow testimony by Honolulu Police Department Officer Cary Okimoto during cross-examination regarding his opinion on the intent of the legislature in enacting the UEMV law. We agree with Faria’s first contention that the trial court erred in failing to give a jury instruction on what constitutes “entry,” but disagree with his remaining contentions on appeal. We, therefore, vacate Faria’s conviction and sentence and remand this case for new trial consistent with this opinion.

I. BACKGROUND

At the time of the incident in February 2000, Faria resided with his wife, Candace Faria (Mrs. Faria), and his two step-daughters, Korey and Kelly, in Kapolei, Hawai'i. Faria was a former Honolulu police officer, having worked for twenty-eight years before retiring in December 1998. Faria was subsequently employed as a reserve police officer and a deputy sheriff with the Department of Public Safety.

On February 17, 2000, Mrs. Faria got into an argument with her daughter Korey at the Faria residence. Mi’s. Faria asked Korey to leave because she believed Korey was continuing to lie about where she had been going and what she had been doing. Korey agreed to leave, and Mrs. Faria asked her husband to see whether anyone was outside the house waiting to pick up Korey. Faria went outside and observed a car parked just down the road from his house with three individuals sitting inside the vehicle. Faria suspected that they were waiting for Korey. Faria returned to the house, picked up a soda can and a can of mace, and went back outside towards the vehicle. Although Faria did not recognize the two male individuals occupying the front seats of the vehicle, he recognized the female passenger, seated in the middle of the back seat, to be Korey’s friend, Christi Gray.

Faria approached the driver’s side of the car and attempted to speak with the individuals in the car, but they did not respond and did not make eye contact with him. In a [386]*386taped interview with Officer Okimoto, Faria related that the driver’s side window was open. At trial, Faria testified that he was a minimum of three feet away from the vehicle at that time. The occupant in the front passenger seat, Dwayne Graham, testified that Faria was four or five inches away from the vehicle. The occupant in the driver’s seat, Melvin Lyons, testified that Faria was twelve to eighteen inches away from the vehicle.

Faria asked the occupants several questions and became angry because the occupants refused to respond. In frustration, Faria yelled profanities at the occupants and threw his soda can behind the car. Faria then sprayed the occupants of the vehicle several times with the mace. Lyons testified that: (1) he was sprayed with mace in his face; (2) the whole side of his face was burning; and (3) it was painful. Graham testified that: (1) he saw Faria spraying; (2) he was sprayed in his eyes and on the left side of his face; and (3) he felt a burning sensation and had difficulty breathing.

There is conflicting testimony as to whether Faria’s hand entered the vehicle at the time he sprayed the mace. Faria testified that no part of his body entered the vehicle. Gray stated that she did not know if Faria’s hand entered the car because she had ducked when he first sprayed the mace into the car. Graham testified that he saw Faria’s hand enter approximately “elbow length” into the car. Graham further stated that Faria’s “arm was in the vehicle when I got sprayed because I clearly saw his hand ... his hand came across, came across the front seat and he had got me.” Lyons also testified that he saw Faria’s arm in the vehicle.

Officer Okimoto testified that he was responsible for investigating the February 17, 2000 incident. He also testified that, at the time of his investigation, he looked at the law on UEMV. However, Officer Okimoto stated that the prosecutor’s office made the decision with regard to the specific charge against Faria and that he did not have a role in that decision.

During cross-examination by defense counsel, Officer Okimoto was asked: “Have you ever been involved in an investigation of an Unlawful Entry into Motor Vehicle before where somebody’s person did not enter the vehicle?” The prosecution objected on the ground that the question did not tend to make the existence of a fact that is of. consequence to the determination of the action more or less probable. Defense counsel ai’-gued:

First, it is, and I alluded to it this morning at pretrial, but it is one of our major defenses with respect to the legislative intent on this particular crime. And this detective testified that he was the lead detective and he was responsible for the entire investigation. I think that I’m entitled to get into what his background and experience and knowledge is with respect to the intent of the law because, as I’ve indicated in pretrial, the legislators moved this from a misdemeanor to a Class C felony as a result of the multiple automobile thefts occurring to tourists, and it doesn’t fit this fact scenario.

The trial court sustained the objection, stating:

The officer was not called by the state to express any opinions regarding the validity of the charges being brought. This was a case that was placed before the grand jury by the prosecutor’s office, indictment was returned,

Accordingly, Officer Okimoto’s opinion testimony on the UEMV law was not allowed into evidence.

During the settling of jury instructions, the prosecution’s Instruction No. 1 was modified without objections by either party. In[387]*387struction No. 1 stated that “[a] person commits the offense of Unauthorized Entry into Motor Vehicle if he intentionally or knowingly enters unlawfully a motor vehicle, with intent to commit therein a crime against a person.”

The prosecution also submitted proposed supplemental jury instructions on assault in the third degree and its material elements. Supplemental Instruction No. 1 (Supp.

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Bluebook (online)
60 P.3d 333, 100 Haw. 383, 2002 Haw. LEXIS 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-faria-haw-2002.