Merger was the Case

State v. Santiago (HSC December 20, 2013)
Background. Anthony Santiago was charged with both robbery in the second degree and assault in the first degree. Santiago was driving his truck through Waikiki and Kaulana Akau was in the passenger’s seat. Santiago picked up Brad Easterling—the complainant—and his friend, Dustin Hernandez and they sat in the bed of the truck. At trial, there are very different versions of what happened. Easterling said that during the ride, he gave Santiago some marijuana and when they got to their destination, he and his friend got out of the truck and shook hands with Akau and Santiago. When Easterling shook hands with Santiago, Santiago grabbed hold of his hand, Easterling dropped his skateboard, and someone took his backpack. He heard someone say “take off” and the truck started moving. Easterling was dragged for a distance and had serious abrasions and bruises on his left arm, shoulder, hand, knee, and hip.

Akau said he never saw the exchange of marijuana during the ride and could not recall shaking Easterling’s hand. He said he saw the marijuana exchange after the ride. He said that he saw Santiago grab the bag and accelerate. He denied saying “take off.”

Santiago’s version went like this: there was no marijuana exchange during the ride, but afterwards, he got a small amount after Easterling got out of the truck. They shook hands and he never pulled him into the truck. Easterling was standing outside the truck on the driver’s side when he handed him a bag with marijuana. Santiago passed it over to Akau to examine it. Then Akau handed it back Easterling. They started discussing the quality and quantity of the marijuana when Easterling received a text message from his girlfriend. As he responded to the text, Easterling reached into the truck for what he thought was the marijuana. Easterling and Akau were struggling and Santiago was being hit. He never saw a backpack. Once Santiago separated Easterling and Akau, he took off in a panic. After driving some distance, he stopped at an intersection and Akau lunged over and “pulled fingers off the door.”

Easterling’s treating physician testified that Easterling suffered permanent disfigurement to his body as a result of being dragged along the roadway. The doctor concluded that this was a “serious bodily injury.” Akau was also charged as an accomplice to the robbery. The trials were consolidated.

The jury was instructed about the elements of both offenses for Santiago. The court also provided a special interrogatory: (1) did Santiago commit the both offenses as a “continuing and uninterrupted course of conduct”? and (2) did were the offenses committed with separate and distinct intents, rather than acting with one intention, one general impulse, and one plan to commit both offenses? No specific unanimity instruction was given. At closing, the prosecutor argued that Santiago “robbed” Easterling of his backpack and committed assault. The jury found Santiago guilty as charged and answered yes to both questions in the interrogatory. The jury also found Akau guilty as an accomplice. The court placed Akau on probation and sentenced Santiago to prison for ten years. The ICA affirmed.

No Arceo, No Problem! The HSC held that there was no need for the unanimity instruction. “When it appears . . . that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice” and a more specific instruction is needed to ensure that “the jury understands its duty to unanimous[ly] agree to a particular set of facts.” State v. Arceo, 84 Hawaii 1, 32, 928 P.2d 843, 874 (1996). The instruction is unnecessary when the prosecution elects as to which specific act it is relying upon to establish the “conduct” element. Id. at 33, 928 P.2d at 875. This instruction is also not required when (1) the offense is not defined in a way to preclude it from being a continuous offense and (2) the prosecution alleges, tries, and argues that the defendant engaged in a continuous course of conduct. State v. Apao, 95 Hawaii 440, 447, 24 P.3d 32, 39 (2001).

The HSC held that in this case the prosecution did not adduce evidence of multiple acts to support the counts of robbery and assault. According to the HSC, it was clear that the act of causing injury came from dragging Easterling down the road and not the elbowing, grabbing, or hitting. Although the latter may have been injuries, both robbery and assault in the first degree required proof of a “serious injury” (i.e., a “substantial risk of death” or “serious, permanent disfigurement”). There can be no mistake that the dragging and road rash were the intended evidence, not the grabbing and elbowing.

When Two Become One. The HSC, however, did find trouble in the conviction and sentence. When the same conduct can establish “an element of more than one offense, the defendant may be prosecuted for each offense . . . . The defendant may not, however, be convicted of more than one offense if [i]inconsistent findings of fact are required to establish the commission of the offenses[.]” HRS § 701-109(c).

Santiago was found guilty of robbery in the second degree and assault in the first degree. Robbery required proof that Santiago “recklessly inflicted serious bodily injury” upon Easterling in the course of a theft. HRS § 708-841. He was also found guilty of assault in the first degree—which required proof that he knowingly or intentionally caused serious bodily injury. HRS § 707-710. So far so good. The only legitimately serious bodily injury was the road rash.

But in answering in the affirmative to the question as to whether there were “separate and distinct intents, rather than acting with one intention, one general impulse, and one plan to commit both offenses,” the jury did not find that the two offenses merged into a single conviction. This, according to the HSC, revealed the inconsistent findings of fact because of the two divergent states of mind in either offense. One cannot recklessly cause serious bodily injury while committing a theft and at the same time knowingly or intentionally causing the same serious bodily injury for the assault charge. These are “mutually exclusive states of mind.” Briones v. State, 71 Haw. 442, 457, 848 P.2d 966, 974 (1993). Thus, one of the convictions must be dropped.

So what do we do now? Which one must go to the wayside? When the defendant has been wrongly convicted of two offenses, the appellate court may consider principles of equity and judicial economy in fashioning a remedy. See State v. Jumila, 87 Hawaii 1, 950 P.2d 1201 (1998). Generally, when one must go, the remedy is to reverse the lesser offense to avoid “manifest unfair[ness] to the prosecution and to the public[.]” Id. When the offenses are of an “equal grade,” like here, the court is free to examine which count should be reversed. See State v. Luiafi, 1 Haw. App. 625, 644, 623 P.2d 1271, 1283 (1983). Here, the HSC examined the record and noted that the robbery charge was the primary focus of the prosecution’s closing argument. The prosecutor only mentioned the assault “in passing.” Akau’s lawyer also tied the injury to the robbery and not the assault and upholding the verdict for robbery would be consistent with the verdict against Akau. The remedy was to reverse the conviction for assault in the first degree.


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