Attempted robbery is a crime when you attempt or threaten force, just not when you actually use force

 State v. Sing (HSC June 28, 2024)

Background. John Sing and Abraham Sionesini were charged with robbery in the second degree. Wesley Mau was sitting on a bench in Waikiki when Sing and Sionesini came up to him. Sionesini said, “I want your watch” and grabbed the watch on Mau’s wrist. Mau pulled his arm away. Sing says “so what? You gonna call the police?” and lightly smacks Mau’s face. Then Sing and Sionesini walked away from Mau. The police arrested them later that night.

Sing was charged with robbery in the second degree. HRS § 708-841(1)(a). At trial, the circuit court, at the request of the prosecution and over Sing’s objection, instructed the jury that if they found Sing not guilty of robbery or could not reach a unanimous decision, it must consider the included offense of attempted robbery in the second degree. The jury came back with the included offense. Judge James S. Kawashima was the trial judge. Sing appealed and the ICA affirmed.

 

The Hawai‘i Penal Code has a place for attempted robbery. Robbery happens when a person “in the course of committing theft” “uses force against the person of anyone present with the intent to overcome that person’s physical resistance or physical power of resistance[.]” HRS § 708-841(1)(a). It can also happen when the person “threatens the imminent use of force” or “recklessly inflicts serious bodily injury” all “in the course of committing theft.” HRS § 708-841(1)(b) & (c). Sing’s argument turns on the statutory term:

 

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.

 

HRS § 708-842.

 

Sing argues that there can be no attempted robbery because the phrase “in the course of committing a theft” already encompasses the attempt. The HSC disagreed.

 

Attempted robbery is when a person attempts to use force or threaten force while committing theft or attempting to commit theft. The term “in the course of committing a theft” includes actual and attempted theft. And so robbery arises when a defendant “in the course of committing theft,” that is, actually committing or attempting to commit theft, does one of the subsections in HRS § 708-841(1). That much is true. But according to the HSC, attempted theft happens when “in the course of committing theft,” the defendant attempts to use or threaten the use of force.

 

The HSC interpreted the statute by looking at the commentary to the HRS § 708-841, the Model Penal Code, and the cases in which convictions for attempted robbery were upheld albeit on other grounds. See State v. Vinge, 81 Hawai'i 309, 318-19, 916 P.2d 1210, 1219-20 (1996); State v. Mendonca, 68 Haw. 280, 281, 711 P.2d 731, 732-33 (1985); State v. Reese, 61 Haw. 499, 499-500, 605 P.2d 935, 936 (1980). It also gave an example from New Jersey.

 

The HSC noted that attempted robbery is the “appropriate charge” when there was an attempted theft and a substantial step was taken to use or threaten force. In State v. Farrad, 753 A.2d 648, 650, 657 (N.J. 2000), the defendant walked into a restaurant with a scarf covering his face, walked to the counter, put his hand in his coat where he had a gun, but was stopped by officers before anything happened. That was an attempted robbery.

 

Another example is Reese, where the defendant was standing 75 feet away from a liquor store with a rifle in his hand. When the police showed up, he told them he was “going to hit the store.” Id. at 500, 605 P.2d at 936. The HSC held that attempted robbery in the second degree “is a cognizable offense in situations where there are attempts to use force or threaten the use of force.”

 

But that’s not what happened here. This case is not an attempted robbery and the HSC held that the circuit court erred in instructing the jury about it as an included offense. Sing actually used force when he smacked Mau. He did not threaten or attempt to use force.

 

The trial court “is not obligated to charge the jury with respect to an included offense unless there is a rationale basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” HRS § 701-109(5). The HSC held there was no rationale basis to instruct the jury about attempted robbery because there was no evidence of an attempt or threat to use force. The circuit court erred in instructing the jury.

 

The error is not harmless. This error was not harmless beyond a reasonable doubt:

 

When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. However, error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to the conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been must be set aside.

 

State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006).

 

Here, the circuit court instructed the jury to consider attempted robbery “[i]f and only if you find the defendant not guilty of Robbery in the Second Degree, or you are unable to reach a unanimous verdict as to this offense[.]” And while the jury could have convicted Sing of robbery in the second degree, it did not. Because the included offense should not have been read, Sing might have been acquitted. That gave rise to the “reasonable possibility” that the error contributed to the conviction.

 

Double Jeopardy prevents a retrial. No person “shall . . . be subject for the same offense to be twice put in jeopardy . . . .” Haw. Const. Art. I, Sec. 10. See also U.S. Const. Am. V (no person “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb”).

 

The Double Jeopardy Clauses protect people from “a second prosecution for the same offense after acquittal[.]” State v. Rogan, 91 Hawai'i 405, 416, 948 P.2d 1231, 1242 (1999). That means defendants “may not be retried for any offense of which [they have] been acquitted, whether expressly or impliedly, notwithstanding a subsequent reversal of the judgment on appeal.” State v. Kalaola, 124 Hawai'i 43, 52-53, 237 P.3d 1109, 1118-19 (2010). A defendant convicted of an included offense is acquitted of the greater. See HRS § 701-110(1).

 

In this case, the jury came back with a guilty verdict for the included offense. That is an “implied” acquittal of the greater. See, e.g. State v. Loa, 83 Hawai'i 35, 359, 926 P.2d 1258, 1282 (1996).

 

This is not a new rule warranting prospective application. The HSC also rejected the prosecution’s argument that this would be a new rule. The HSC explained that the ruling was one of statutory construction “only . . . to elucidate the meaning and application of specific provisions of a statute.” See Rapozo v. State, 150 Hawai'i 66, 80, 497 P.3d 81, 95 (2021). When the appellate court “engages only in statutory construction to elucidate the meaning and application of specific provisions of a statute, we have held that a new rule does not arise.” Schwartz v. State, 136 Hawai'i 258, 274, 361 P.3d 1161, 1177 (2015).

 

That is what happened here. The HSC merely applied preexisting law so interpreting the robbery statutes to recognize the offense of attempted robbery—something that has been upheld in other cases for at least forty years—is not a new rule and the HSC did not have to decide if it applied retroactively or prospectively.

 

And so the HSC reversed the judgment. Double Jeopardy barred a new trial.