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NO. CAAP-18-0000579

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

GABRIEL STAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CRIMINAL NO. 1CPC-17-0001113)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant Gabriel Stan (Stan) appeals from

the Circuit Court of the First Circuit's1 (Circuit Court) Amended 

Judgment of Conviction and Sentence (Amended Judgment) entered on

May 24, 2018.2 Plaintiff-Appellee State of Hawai#i (State)

charged Stan via Complaint3

 filed on August 14, 2017 with Robbery

1 The Honorable Fa'auuga L. To'oto'o presided.

2 Stan's Notice of Appeal filed July 20, 2018 appealed from the

Judgment of Conviction and Sentence entered on May 16, 2018, rather than from

the Amended Judgment entered May 24, 2018 which reflected the correct spelling

of Stan's first name. We construe Stan's appeal as an appeal from the Amended

Judgment. See State v. Bohannon, 102 Hawai#i 228, 236, 74 P.3d 980, 987

(2003).

3 The Complaint charged as follows:

On or about August 7, 2017, in the City and County of

Honolulu, State of Hawai#i, GABRIEL STAN, while in the

course of committing theft, and while armed with a dangerous

instrument, did use force against the person of Hana

Okuyama, a person who was present, with intent to overcome

Hana Okuyama's physical resistance or physical power of

resistance and/or did threaten the imminent use of force

against the person of Hana Okuyama, a person who was

present, with intent to compel acquiescence to the taking of

or escaping with the property, thereby committing the

offense of Robbery in the First Degree, in violation of

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000579

30-MAR-2021

07:53 AM

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in the First Degree (Robbery First Degree) in violation of Hawaii

Revised Statutes (HRS) § 708-840(1)(b)(i) and/or § 708-

840(1)(b)(ii) against Hana Okuyama (Okuyama). Following a jury

trial, Stan was found guilty as charged and sentenced to a

twenty-year term of imprisonment for Robbery First Degree in

violation of HRS § 708-840(1)(b)(i)(2014).4

On appeal, Stan contends that: (1) the Circuit Court

erred by failing to sua sponte instruct the jury on the included

offense of Robbery in the Second Degree (Robbery Second Degree);

(2) the Circuit Court abused its discretion when it denied Stan's

motion for mistrial after a witness for the State used the word

"victim" twice during testimony; and (3) Stan's right to a fair

trial was violated due to prosecutorial misconduct based on the

prosecutor's improper question during direct examination, which

unfairly undermined Stan's identification defense. 

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, as

well as the relevant statutory and case law, we conclude

Stan's appeal is without merit.

(1) Included Offense Instruction

In his first point of error, Stan contends that the

Circuit Court erred when it failed to sua sponte instruct the

jury on the included offense of Robbery Second Degree (Robbery

3(...continued)

Section 708-840(1)(b)(i) and/or Section 708-840(1)(b)(ii) of

the Hawai#i Revised Statutes.

4 HRS § 708-840(1)(b)(i), Robbery First Degree, states in pertinent

part:

(1) A person commits the offense of robbery in the

first degree if, in the course of committing theft or

non-consensual taking of a motor vehicle:

. . . .

(b) The person is armed with a dangerous instrument or a

simulated firearm and:

(i) The person uses force against the person of anyone

present with intent to overcome that person's physical

resistance or physical power of resistance . . . . 

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Second Degree) under HRS § 708-841(1)(a) (2014)5 because there

was a rational basis in the evidence for the jury to consider

that charge. Neither Stan nor the State requested an instruction

for Robbery Second Degree.

The Robbery First Degree subsection (1)(b)(i) offense

at issue here and Robbery Second Degree both contain the common

material element of using force against the other person with

intent to overcome the other person's physical power of

resistance, in the course of committing theft. The higher grade

offense of Robbery First Degree requires an additional material

element of proof that the perpetrator be "armed with a dangerous

instrument." HRS § 708-840(2) defines "dangerous instrument" as

any weapon or instrument "which in the manner it is used or

threatened to be used is capable of producing death or serious

bodily injury." Stan argues that the jury may have found that

the knife used by Stan was not a "dangerous instrument" under the

Robbery First Degree statute, HRS § 708-840(1)(b), because there

was evidence from which the jury could infer the knife was not a

"dangerous instrument" under State v. Radcliffe, 9 Haw. App. 628,

645, 859 P.2d 925, 935 (1993).6 Stan argues that from Okuyama's

testimony that Stan displayed the knife and pointed it at her

chest, "the jury could have concluded that the knife being

pointed at her chest was inadvertent or incidental." Stan urges

that the jury "could have decided that, in the manner in which

Stan held or used the knife, or threatened to use it, the

5 HRS § 708-841(1)(a), Robbery Second Degree, provides that "[a]

person commits the offense of robbery in the second degree if, in the course

of committing theft" the person "uses force against the person of anyone

present with the intent to overcome that person's physical resistance or

physical power of resistance[.]" 

6 In Radcliffe, we held that the trial court's instruction to the

jury in a Robbery First Degree case, that "[a] knife is a dangerous

instrument" was a misstatement of the law and improperly "took the question of

the knife's use from the jury." 9 Haw. App. at 645, 859 P.2d at 935. We

concluded, "[t]his was especially prejudicial to Defendant in view of

[complainant]'s and [witness]'s trial testimony that Defendant was merely

waving the knife around and not holding it against [complainant]'s throat" as

they indicated in their previous statements to the police. Id.

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evidence did not establish it was a 'dangerous instrument' beyond

a reasonable doubt."

Where an omission of jury instructions is 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." State v.

Flores, 131 Hawai#i 43, 57-58, 314 P.3d 120, 134-35 (2013)

(internal citations, alterations, and quotation marks omitted). 

A "trial court is not obligated to charge the jury with respect

to an included offense unless there is a rational basis in the

evidence for a verdict acquitting the defendant of the offense

charged and convicting him of the included offense." Id. at 50,

314 P.3d at 127 (internal citations omitted).

In this case, Okuyama testified that once she stepped

outside the McDonald's on Kūhiō Avenue, a male she identified as

Stan approached her after he had been following her, and when he

came within a one-foot distance of her, Stan showed his knife,

threatened her, and demanded her bag. Stan pulled Okuyama's bag,

which was hanging from her arm, and pointed the knife directly at

her chest, below her left shoulder. Stan's pulling caused

Okuyama to fall when Okuyama did not let go of the bag. Okuyama

fell from the steps outside the McDonald's and onto the ground. 

Okuyama's knees were scratched and bloody from the fall. Okuyama

was "very scared." Stan ran away, but Okuyama saw him two to

three hours later when the police had detained him, and she

identified Stan as the male who had tried to take her bag.

Okuyama's account of the robbery incident was

corroborated by two eyewitnesses. Eyewitness Shangrila Peralta

(Shangrila), a resident from Washington who was visiting Honolulu

with her family for a wedding, testified that she saw a white

male, whom she identified as Stan, pull shopping bags from an

Asian female (Okuyama) who was screaming. Stan pulled Okuyama

down off the steps of McDonald's while tugging at Okuyama's bag. 

As Okuyama fell to the ground, Shangrila told the male to stop. 

Stan paused and looked at Shangrila before running off. 

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Shangrila's brother, eyewitness Czardemund Peralta (Czar), also

heard a loud scream and saw a male throw a Japanese female onto

the ground. Czar saw a male holding a knife and struggling to

pull the female's purse or shopping bag away from her, before he

ran off. Czar identified the male as Stan. Czar immediately

chased Stan down Kūhiō Avenue and Seaside Avenue. Czar said he

chased Stan because he "actually thought [Stan] had stabbed her

'cause I saw the knife," and Czar didn't want Stan to run away. 

After checking to see that Okuyama was okay, Shangrila then ran

after Czar to make sure he was okay. Later, Honolulu Police

Department (HPD) officers recovered a white plastic bag from

Shangrila which turned out to contain, a "[t]urquoise

kitchen-type knife with an 8-inch blade," which was submitted as

evidence. Shangrila testified that Stan had the white plastic

bag in his hand during the incident. A bystander gave Shangrila

the white plastic bag as she was chasing Czar and Stan, and the

bystander told Shangrila that Stan had dropped it.

Based on our review of the evidence as to the element

of "dangerous instrument," there was no rational basis in the

record for the jury to acquit Stan of Robbery First Degree and

convict him of Robbery Second Degree. See Flores, 131 Hawai#i at

50, 314 P.3d at 127. Stan's contention is without merit.

(2) Motion for Mistrial

In his second point of error, Stan contends that the

Circuit Court abused its discretion by refusing to grant Stan's

oral motion for a mistrial for a violation of a motion in limine,

because the State's police officer witness used the word "victim"

twice during his testimony. The first occurrence was when the

officer described his arrival at the scene on August 7, 2017:

Q Where did you proceed to from your location on

Kalakaua?

A From that particular area, I went to Kalakaua

and Seaside, which is in Waikiki where H&M is

right now. That's where I saw some of the

bystanders flagging me down about the incident,

and the male had taken off from that area. So I

then asked where did the incident occur, and they

led me or they told me that it happened on Kuhio 

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at the McDonald's. So then I moved on from that 

area to the area where the victim was –-

Q Okay.

A -- to figure out if she needed treatment first

and what happened.

(emphasis added). Stan did not object at this point during the

officer's testimony. When the second reference to the term

"victim" occurred, defense counsel moved to strike the response,

and the Circuit Court promptly did so, as follows:

Q Okay. At that point what was the purpose of

detaining the defendant?

A Since the defendant matched the description, I

just wanted to make sure that that was positively the

male that the victim had been looking for, we had been

looking for.

[DEFENSE COUNSEL]: Move to strike the response, Your

Honor.

THE COURT: Okay. Part of the officer's

description of the complainant as the victim, you

folks have to disregard that statement by the police

officer.

(emphases added). When Stan orally moved for a mistrial the

following day, the Circuit Court denied the motion.

"The denial of a motion for mistrial is within the

sound discretion of the trial court and will not be upset absent

a clear abuse of discretion." State v. Plichta, 116 Hawai#i 200,

214, 172 P.3d 512, 526 (2007) (citing State v. Rogan, 91 Hawai#i

405, 411, 984 P.2d 1231, 1237 (1999)). Counsels and witnesses

should refrain from using the term "victim," as the term is

"conclusive in nature and connotes a predetermination that the

person referred to had in fact been wronged." State v. Mundon,

129 Hawai#i 1, 26, 292 P.3d 205, 230 (2012) (citing State v.

Nomura, 79 Hawai#i 413, 416, 903 P.2d 718, 721 (App. 1995)). 

Avoiding the use of the term "victim" in a trial is consistent

with the principles of the "presumption of innocence and the

maintenance of fairness and impartiality during the trial[.]" 

Id. In Mundon, where two witnesses referred to the complainant

as "victim" in their testimony, the supreme court found reversal

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of the conviction was not warranted where "the use of the term

'victim' in the limited circumstances of th[e] case was not

prejudicial" to the defendant. Id. at 26, 292 P.3d at 230. In

State v. Austin, 143 Hawai#i 18, 31, 422 P.3d 18, 31 (2018), the

supreme court held in a murder case, where "there was no dispute

as to whether [the decedent] had been the object of a crime, and

the key issue at trial was the identity of the perpetrator, the

State's use of the term 'victim' did not connote Austin's guilt."

(brackets added) (emphasis in original). Under these

circumstances, the supreme court concluded that the trial court

did not err in permitting the State or its witnesses from

referring to the decedent as "the victim" at trial. Id.

In this case, while the police officer witness

improperly used the term "victim" twice, the Circuit Court

immediately struck the response and provided a curative 

instruction to the jury. Juries "are presumed to . . . follow

all of the trial court's instructions." State v. Knight, 80

Hawai#i 318, 327, 909 P.2d 1133, 1142 (1996) (citation omitted). 

The minimal use of the term "victim" in this case, by a single

witness twice in his testimony, promptly cured by the Circuit

Court, did not constitute prejudice warranting reversal of Stan's

conviction. See Mundon, 129 Hawai#i at 26, 292 P.3d at 230. 

Similar to the situation in Austin, where there was no dispute in

this case that Okuyama had been the object of a robbery, and the

key issue at trial was identification, a single witness's use of

the term "victim" twice during his testimony, did not connote

Stan's guilt. See Austin, 143 Hawai#i at 31, 442 P.3d at 31. 

There was no abuse of discretion by the Circuit Court in denying

Stan's motion for mistrial under these circumstances. See id.;

Plichta, 116 Hawai#i at 214, 172 P.3d at 526.

(3) Violation of the Motion in Limine

In his third point of error, Stan contends that he was

denied his right to a fair trial and suffered from prosecutorial

misconduct when the State's improper question led an HPD officer

to testify that the knife recovered in the robbery investigation

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was the same knife the officer observed in Stan's possession

earlier on the same day of the incident, in violation of a motion

in limine. Stan argues that because his defense at trial was

misidentification, the HPD officer's improper testimony

undermined his defense.

"The term 'prosecutorial misconduct' is a legal term of

art that refers to any improper action committed by a prosecutor,

however harmless or unintentional." State v. Maluia, 107 Hawai#i

20, 25, 108 P.3d 974, 979 (2005)(italics and internal quotation

marks in original). "Allegations of prosecutorial misconduct are

reviewed under the harmless beyond a reasonable doubt standard,

which requires an examination of the record and a determination

of 'whether there is a reasonable possibility that the error

complained of might have contributed to the conviction.'" 

Austin, 143 Hawai#i at 28, 422 P.3d at 28 (citing State v.

Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)

(quoting State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d

1215, 1220 (1996))). "Prosecutorial misconduct warrants a new

trial or the setting aside of a guilty verdict only where the

actions of the prosecutor have caused prejudice to the

defendant's right to a fair trial." Id. at 39-40, 422 P.3d at

39-40 (quoting State v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194,

209 (1996) (quoting State v. McGriff, 76 Hawai#i 148, 158, 871

P.2d 782, 792 (1994))). When determining whether the alleged

prosecutorial misconduct rises to the level of reversible error,

this court considers three factors: (1) the nature of the alleged

misconduct; (2) the promptness or lack of a curative instruction;

and (3) the strength or weakness of the evidence against the

defendant. Id. at 40, 422 P.3d at 40.

In this case, the State questioned the officer about

the knife and the officer's prior observation of that knife, as

follows:

Q [(PROSECUTOR)]: Okay. Did you ever learn that a knife

had been used?

A [(POLICE OFFICER WITNESS)]: Yes.

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Q And did you get a description of the knife?

A Yes, I did.

Q And what was the description of the knife that you

got?

A It was a blue – bluish turquoise knife is the color

that it was, inside of a sheath.

Q Did you – had you seen this knife before?

A Yes, I have.

Q And can you I guess – can you – in general terms can

you describe to the jury when you saw this turquoise

knife.

A On the same day that I had gotten this flag-down, I

had arrested a male on that same morning, early in the

morning. And that male that I had arrested in that

instant, he relayed to me that he had a knife on his

waistband. He then showed me the knife, exposed the

knife, and it was that same bluish turquoise knife

that I observed in that investigation that night.

[DEFENSE COUNSEL]: Objection. Move to strike.

Motions in limine.

(emphasis added). During a bench conference, defense counsel

referenced the following ruling made, prior to the start of

trial, during a March 5, 2018 motions in limine hearing:

[DEFENSE COUNSEL]: The specific ruling in motions in

limine is he could describe what he saw earlier that day

but not make the conclusion that it was the same knife.

I think that was specifically ruled on by the Court. And

he has since testified that it's the same knife. So I

think that needs to be, No. 1, stricken. And you know,

at this point I'm going to ask for a mistrial.

THE COURT: The officer is about to testify --

isn't the testimony that the defendant is seen, observed

with the knife?

[DEFENSE COUNSEL]: Right. But I specifically asked

after that that he cannot make the conclusion that it's

the same knife.

[PROSECUTOR]: I can just ask him to -- to

describe.

THE COURT: The Court will give you a

cautionary instruction to strike the part of the

officer's answer concluding that the knife is the same

knife.

[DEFENSE COUNSEL]: Your Honor, while I'm here, I'm

going to make a motion for mistrial because it's a

violation of the motions in limine. This is a police

officer and the prosecution should have advised him not

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to make this statement.

THE COURT: All right. Motion denied.

. . . . 

THE COURT: All right. Officer, resume your

chair before we continue.

Ladies and gentlemen, part of the officer's

answer indicating the knife that he had seen earlier is

the same knife involved in the incident -- you folks are

ordered to disregard this part of the answer from the

police officer. Okay? Thank you very much.

(emphasis added). We apply the three factors to the trial record

to determine whether the prosecutorial misconduct rises to the

level of reversible error. See Austin, 143 Hawai#i at 40, 422

P.3d at 40.

The first factor requires consideration of the nature

of the misconduct. The prosecutor's question to the officer as

to whether he had seen "this knife before" violated an in limine

ruling that prohibited the officer's conclusion that the knife

recovered in the robbery case was the "same knife" as the one the

officer had seen Stan in possession of earlier that same day.7

7 The Circuit Court's in limine ruling was less than clear, on the

one hand precluding the "same knife" testimony, but also allowing the

prosecutor to elicit testimony from the officer who recovered "the knife that

turned out to be the same knife." The pertinent portion of the transcript

reads:

THE COURT: So you may -- you may refer to this earlier

incident minus any testimony going to defendant seen

stabbing a tree.

[DEFENSE COUNSEL]: Your Honor, I would also ask that the

conclusion that it's the same knife not be allowed.

THE COURT: Take out the same knife, but knife of the same

color found -- describe the knife and this is the color of

the knife, and then take it from there to your -- your

arresting officer who recovered the same, the knife that

turned out to be the same knife.

[PROSECUTOR]: Okay.

THE COURT: So -- okay. So earlier -- so State allowed to

elicit testimony about a knife. Defendant arrested earlier

as indicated by defense counsel and a knife was found on

him. Okay. That's fine minus the testimony about seeing

the defendant stabbing the tree earlier with the knife. 

Okay?

[DEFENSE COUNSEL]: And just the description; right?

(continued...)

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(emphasis added). This was misconduct. See Maluia, 107 Hawai#i

at 25, 108 P.3d at 979. 

Because the improper question constituted prosecutorial

misconduct, we examine the second factor regarding the promptness

or lack thereof, of any curative instruction to the jury. See

Austin, 143 Hawai#i at 40, 422 P.3d at 40. Here, a curative

instruction was promptly given to the jury, which was

specifically told to disregard the "same knife" testimony. The

jury is presumed to have complied with the Circuit Court's

instruction. See State v. Underwood, 142 Hawai#i 317, 327, 418

P.3d 658, 668 (2018) (when a trial court promptly addresses the

impropriety, the improper remarks are generally considered cured

by the court's instruction to the jury because "it is presumed

that the jury abided by the court's admonition to disregard the

statement.") (quoting State v. McGriff, 76 Hawai#i 148, 160, 871

P.2d 782, 794 (1994)). 

The third factor requires consideration of the strength

or weakness of the evidence against the defendant. See Austin,

143 Hawai#i at 40, 422 P.3d at 40. The evidence against Stan in

support of the Robbery First Degree charge was strong. Okuyama,

a 19-year-old university student from Japan, was walking back to

her hotel alone, when she noticed Stan followed her and "smiled

at her," which made her "nervous" and "very scared." Okuyama

unequivocally identified Stan as the person who had been

following her and waiting for her outside of McDonalds, when he

robbed her by threatening her with a knife and pointing it at her

chest. Czar confirmed seeing Stan trying to pull Okuyama's bags

from her while he had a knife. Czar saw this from a "pretty

7(...continued)

THE COURT: Yes.

[DEFENSE COUNSEL]: Okay.

THE COURT: All right. So Ms. Prosecutor, please make note

of that.

[PROSECUTOR]: Yes.

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close" distance, "[m]aybe 15 feet" away. Eyewitness Shangrila

also saw the incident between Stan and Okuyama from about 20 feet

away and corroborated Okuyama's account of what occurred. 

Shangrila turned in a white plastic bag that another bystander

had given to her after the chase, explaining that Stan had

dropped it. Shangrila had also seen Stan holding the white bag

during the robbery incident. Shangrila handed over the white bag

to the police. The bag contained the knife. There was

overwhelming evidence to support the jury's verdict that Stan was

the person responsible for robbing Okuyama while threatening her

with a knife. We conclude that any misconduct in this case does

not rise to the level of reversible error, nor was Stan denied

his right to a fair trial. See Austin, 143 Hawai#i at 39-40, 422

P.3d at 39-40. 

Therefore, IT IS HEREBY ORDERED that the Amended

Judgment of Conviction and Sentence, entered May 24, 2018, in the

Circuit Court of the First Circuit is affirmed. 

DATED: Honolulu, Hawai#i March 30, 2021.

On the briefs:

William K. Li,

for Defendant-Appellant

Donn Fudo,

Deputy Prosecuting Attorney

City and County of Honolulu

for Plaintiff-Appellee

/s/ Katherine G. Leonard

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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