Tuesday, January 28, 2014

Prosecution Need only Disprove one of three Elements to Keep it a Class A Kidnapping

State v. Bailey (HSC December 24, 2013)
Background. Ezra Kualaau contacted Andrew Rodriguez to buy crack cocaine. Rodriguez and Bladesin-Isaiah Bailey went to Kualaau’s house in a white Chevy Impala. Kualaau had no shirt or shoes on and was wearing basketball shorts when he joined them at a park across the street from his house in Waiau on the island of Oahu. Rodriguez sat in the driver’s seat, Bailey in the front seat passenger’s seat, and Kualaau in the back. After a cop car drove by, the Bailey and Rodriguez looked at each other, Bailey went to his trunk and Kualaau started getting hit. He was struck in the head and lost consciousness. He was handcuffed and placed in the trunk and then they drove off. In the trunk, Kualaau accessed his cell phone and texted his mother that he was being kidnapped and he called 911. The car drove to a cul-de-sac and parked. They placed a plastic bag and cloth over Kualaau’s head. They walked him up a trail and told him that if he made noise, they’d shoot him. At the top of the trail, they started punching Kualaau several times in the head. Then they shoved him to the ground, ripped the bag off, and ran away. Once he heard the car door slam, Kualaau went down the trail for help. Officer Hamala Wong found Kualaau in the Moanalua Valley area with “abrasions” on his face and body. He had a swollen nose. A doctor later found that he had a broken nose.

The police found Bailey, Rodriguez, and the white impala on Salt Lake Boulevard. Bailey and Rodrigeuz were indicted with one count of kidnapping and one count of assault in the second degree. Witnesses at trial placed a white car and testified that they saw a man being put in the trunk in the Waiau area. At the close of the prosecution’s case, Bailey moved for an acquittal based on the lack of venue. Bailey argued that no witness testified that “this occurred in the City and County of Honolulu.” The trial court denied the motion because there was testimony that some of this took place in Waiau and were definitely happening on the island of Oahu.

Bailey did not testify, but Rodriguez did. He admitted to handcuffing Kualaau, taking him to Moanalua, and putting him in the trunk. He denied putting a bag over his head and punching him. At the closing argument, both defendants argued that there was no proof that the broken nose resulted from the kidnapping. The jury found both guilty as charged for the kidnapping and assault in the third degree as a lesser-included offense. The jury also found that the prosecution proved beyond a reasonable doubt that Bailey did not release Kualaau voluntarily, that he did not release him “alive and not suffering from serious or substantial bodily injury” and that he did not release him in a safe place. The defendants moved for a judgment of acquittal based on lack of venue and the lack of evidence for the class-A kidnapping. The motions were denied and Bailey was sentenced to eight years prison as a young adult offender. He appealed and the ICA affirmed.

Venue Required for a Conviction. “[N]o person may be convicted of an offense unless” facts establishing venue are proven beyond a reasonable doubt. HRS § 701-114(1)(d). Furthermore, the prosecution must take place “in the circuit in which the offense or any part of it was committed.” HRPP Rule 18. The failure to establish venue may result in an acquittal. State v. Kwak, 80 Hawaii 297, 305, 909 P.2d 1112, 1120 (1995); State v. Miyashiro, 3 Haw. App. 229, 232-33, 647 P.2d 302, 304-05 (1982).

A Lesson in Geography. The State of Hawaii is “divided into four judicial circuits.” HRS § 603-1. The first judicial circuit “is the island of Oahu.” Id. The “City and County of Honolulu encompasses the island of Oahu.” Rev. Charter of the City and County of Honolulu (RCCH) § 1-102. Finally, the “first judicial circuit covers the Island of Oahu [and] all other islands belonging to the state (other than Maui, Molokai, Lanai, Kahoolawe, Molokini, Hawaii, Kauai, and Niihau)[.]” State v. Correa, 5 Haw. App. 644, 650, 706 P.2d 1321, 1325 (1985). Proof that an event arose “on the Island of Oahu is proof that it occurred within the first judicial circuit.” Id. The entire event does not have to take place on Oahu either. “Any part” of the offense is enough establish venue. HRPP Rule 18. Here, the HSC held that there was ample evidence establishing that the offense took place on Oahu and, therefore, within the first judicial circuit. The police and witnesses testified about streets and locations in Waiau, Moanalua, and Pearl City. They used the phrase “island of Oahu” rather than “City and County of Honolulu.” That was enough to establish proper venue.

Impress your Friends at Cocktail Parties. The State is divided into four judicial circuits. Which one is the fourth circuit? For a long time, I could never figure out how Kauai managed to become the Fifth Circuit. Turns out that the fourth circuit used to be Kona and West Hawaii. It makes sense. If you move in a roughly clockwise direction starting with Oahu, you see Oahu as the first, Maui County as the second, Hilo as third, Kona fourth, and Kauai/Niihau as fifth. Then the Big Island became all of the Third Circuit, but Kauai never changed its name. Hence the oddly named Fifth Circuit out of the four judicial circuits. Yes, it’s trivial, but now you know—and knowing is half the battle.

The Quirky thing about Kidnapping. Kidnapping is a class A felony unless and until the prosecution disproves “that the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily harm, in a safe place prior to trial.” HRS § 707-720(3). If it cannot disprove this, it reduces the offense to a class B. But what exactly does the prosecution have to disprove? According to the HSC, the prosecution needs to only disprove one of the elements in this defense. The HSC turned to the way it interpreted the parental discipline statute in State v. Kikuta, 125 Hawaii 78, 253 P.3d 639 (2011). “[B]ecause the requirements [of the parental discipline defense] are set out in the conjunctive, rather than the disjunctive, a defendant need only fail to fulfill any one element in order to fail to sustain the defense.” Id. at 87, 253 P.3d at 648. Similarly, the HSC held that the prosecution need only disprove one of the elements in order to overcome the non-affirmative defense in the kidnapping statute.


Here, the defense has three elements: (1) the defendant must voluntarily release the victim; (2) the victim must be alive and not suffer from serious or substantial bodily injury; and (3) the victim must be released in a safe place. The jury’s interrogatories showed that the prosecution proved beyond a reasonable doubt that Bailey did not release the victim voluntarily and that the victim was not in a “safe place.” The reduction to a class B was not authorized by the jury’s findings.

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