NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER In January 2020, Figueroa was charged via Felony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.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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. 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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...)
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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.
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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).
6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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 [] 7 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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.
8 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (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,
9 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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.)
10 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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). 11 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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.
12 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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. 13 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER 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.