FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

STATE OF HAWAI#I, Plaintiff-Appellant, v.

JOSEPH CORREIA III, Defendant-Appellee

NO. CAAP-18-0000895

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(CASE NO. 1FFC-17-0000591)

JUNE 30, 2022

HIRAOKA AND WADSWORTH, JJ., AND

GINOZA, CHIEF JUDGE, DISSENTING

OPINION OF THE COURT BY WADSWORTH, J.

Plaintiff-Appellant State of Hawai#i (State) appeals

from the "Order Denying [Defendant-Appellee Joseph Correia III's

(Correia)] Motion for New Trial; Entry of Dismissal as to Count

1" (Order 1) and the "Order of Dismissal of Count 1 Abuse of

Family or Household Members ([Hawaii Revised Statutes (HRS) §]

709-906(1) and (9))" (collectively, Dismissal Orders), entered on

October 19, 2018, by the Family Court of the First Circuit

(Family Court).1/ 

1/ The Honorable Karen T. Nakasone presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000895

30-JUN-2022

12:17 PM

Dkt. 56 OP
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Following a jury trial, Correia was found guilty on

Count 1 of Abuse of Family or Household Members in the Presence

of a Household Member Less Than 14 Years of Age, and guilty on

Count 2 of Abuse of Family or Household Members. The Family

Court subsequently ruled that Counts 1 and 2 merged, and ordered

dismissal of Count 1 due to instructional error.

On appeal, the State contends that the Family Court

erred in dismissing Count 1. The State requests that this court

vacate the Dismissal Orders and remand the case for a new trial

on Count 1.

We hold that the State's appeal is moot because we

cannot provide effective relief in the unusual circumstances of

this case. Even if we were to vacate the Dismissal Orders and

remand the case to the Family Court, Correia could not be

convicted on Count 1, because a final and non-appealable judgment

of conviction was entered on Count 2 based on the same conduct. 

The principles of double jeopardy, as set forth in HRS

§ 701-109(1)(a) and (4), therefore bar a conviction on any

retrial of Count 1. Accordingly, this appeal is moot and must be

dismissed for lack of subject matter jurisdiction.

I. Background

On July 10, 2017, Correia was charged with: (1) Abuse

of Family or Household Members, in violation of HRS § 709-906(1)

and (9)2/ (Count 1 or Abuse of Family or Household Members in the

2/ At the time of the alleged offense, HRS § 709-906(1) and (9)

(Supp. 2016) provided, in relevant part:

Abuse of family or household member; penalty. (1) It

shall be unlawful for any person, singly or in concert, to

physically abuse a family or household member . . . .

For purposes of this section:

. . . . 

"Family or household member":

(a) Means spouses or reciprocal beneficiaries,

former spouses or reciprocal beneficiaries,

persons in a dating relationship as defined

under section 586-1, persons who have a child in

common, parents, children, persons related by

consanguinity, and persons jointly residing or

(continued...)

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Presence of a Household Member Less Than 14 Years of Age); and

(2) Abuse of Family or Household Members, in violation of HRS

§ 709-906(1) and (8)3/ (Count 2 or Abuse of Family of Household

Members – Impeding Breathing or Circulation). The charges

stemmed from an incident in which Correia allegedly assaulted his

wife, the complaining witness, in the presence of their sevenyear old daughter. 

Following a jury trial, Correia was found guilty as

charged on Count 1, a class C felony, and guilty of the included

offense of Abuse of Family or Household Members on Count 2, a

misdemeanor. 

On August 28, 2018, Correia filed a motion for a new

trial, contending in part that the jury instructions as to Count

1 were erroneous as to element four of the offense. Correia

argued that the instructions "allowed the jury to find that

[Correia] was 'reckless' as to his state of mind as to the

presence of the minor[,]" when HRS § 706-606.4 required a

"knowing" state of mind. 

The State opposed Correia's motion for a new trial,

arguing that the jury instructions as to Count 1 were correct and

that Counts 1 and 2 merged. The State did not argue in the

alternative for a new trial on Count 1, i.e., in the event the

Family Court ruled that the jury instructions as to Count 1 were

erroneous. 

On October 19, 2018, pursuant to the Dismissal Orders,

the Family Court denied Correia's motion for a new trial, but sua

2/ (...continued)

formerly residing in the same dwelling unit[.]

. . . .

(9) Where physical abuse occurs in the presence of a

minor, as defined in section 706-606.4, and the minor is a

family or household member less than fourteen years of age,

abuse of a family or household member is a class C felony.

3/ At the time of the alleged offense, HRS § 709-906(8) (2014)

provided:

Where the physical abuse consists of intentionally or

knowingly impeding the normal breathing or circulation of

the blood of the family or household member by applying

pressure on the throat or the neck, abuse of a family or

household member is a class C felony.

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sponte granted dismissal of Count 1. The Family Court reasoned

in part:

3. While the court agrees that the instruction on

Count 1 was erroneous, this does not mean that no conviction

can be had on Count 1, nor that a new trial is warranted. 

The error in this instruction means that the facts required

for sentencing enhancement under HRS § 706-606.4, were not

properly found by the jury, and the sentencing enhancement

must be set aside. 

4. Therefore, the jury's finding of physical abuse

under HRS § 709-906, with no felony sentencing enhancement

for "in the presence of a minor", still stands, and supports

a conviction for the misdemeanor offense of Abuse of Family

or Household Members. On Count 1, the court thus finds that

the misdemeanor Abuse offense conviction still stands, and

is appropriate. 

. . . .

6. Based on the jury's responses to the merger

interrogatories, however, Counts 1 and 2 do merge. Based on

the jury's findings supporting merger, and in light of this

court's disposition of Count 1 above reducing the offense to

a misdemeanor, the Court enters a dismissal of Count 1. 

Defendant will be sentenced only on Count 2, at sentencing.

The State did not move for reconsideration of the

dismissal of Count 1 or otherwise seek a new trial on Count 1.

On October 25, 2018, the Family Court entered the

Judgment of Conviction and Probation Sentence (Judgment),

convicting Correia on Count 2, Abuse of Family or Household

Members, in violation of HRS § 709-906 (1) and (5).4/ Correia was

sentenced to two years of probation, subject to certain terms and

conditions, including that he serve a 180-day term of

imprisonment. On the same date, the Family Court entered an

Order Pertaining to Bail Pending Appeal, which stated in part: 

"If a Notice of Appeal is filed, then bail is set in the amount

of $1,000.00 during the pendency of appeal, until a Judgment on

Appeal is entered." On November 16, 2018, the State filed a

timely notice of appeal from Order 1, as well as an amended

notice of appeal challenging both Dismissal Orders. 

On November 17, 2018, Correia filed a notice of appeal

from the Judgment, initiating case no. CAAP-18-0000897. There is

no indication in the record, however, that Correia posted bail

4/ HRS § 709-906(5) provides, in relevant part: "Abuse of a family

or household member . . . [is a] misdemeanor[] . . . ."

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pursuant to the Order Pertaining to Bail Pending Appeal, and the

State's January 4, 2019 statement of jurisdiction in this appeal

(i.e., case no. CAAP-18-0000895) asserts: "Based on the State's

files and records, it is the State's belief and understanding

that [Correia] is in custody in the case on appeal."5/ On

December 17, 2018, Correia filed a Stipulation for Voluntary

Dismissal of the Appeal in case no. CAAP-18-0000897. On

January 4, 2019, this court entered an Order Approving

Stipulation for Voluntary Dismissal of the Appeal, pursuant to

which Correia's appeal was dismissed and the judgment of

conviction on Count 2 became final. 

II. Discussion

The State contends that the Family Court erred in sua

sponte ordering dismissal of Count 1, because the proper remedy

for instructional error was to vacate the conviction as to Count

1 and to order a new trial on that count. Based on this

contention, the State requests that this court vacate the

Dismissal Orders and remand the case for a new trial on Count 1. 

In response, Correia argues in part that this court

does not have jurisdiction because HRS § 641-13 "does not allow

the State to appeal from orders dismissing charges that have

merged with other charges for which the defendant has been found

guilty by a jury." Relatedly, Correia argues that the double

jeopardy clause precludes a retrial in these circumstances. The

State, which elected not to file a reply brief, has not responded

to these arguments.

"In general, 'this court does not have jurisdiction to

decide abstract propositions of law or moot cases.'" State v.

Nakanelua, 134 Hawai#i 489, 501, 345 P.3d 155, 167 (2015)

(brackets omitted) (quoting Lathrop v. Sakatani, 111 Hawai#i 307,

312, 141 P.3d 480, 485 (2006)). "[A] case is moot if the

reviewing court can no longer grant effective relief." 

Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726

5/ As of October 25, 2018, Correia had served 74 days in custody. 

The remaining 106 days of Correia's 180-day sentence, if served from

October 25, 2018, would have expired on or about February 8, 2019.

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(2007) (emphasis omitted) (quoting Kemp v. State of Hawai#i Child

Support Enforcement Agency, 111 Hawai#i 367, 385, 141 P.3d 1014,

1032 (2006)). "[M]ootness is an issue of subject matter

jurisdiction[,]" Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i

1, 4, 193 P.3d 839, 842 (2008), and we must raise the issue sua

sponte, Kapuwai v. City & Cty. of Honolulu, 121 Hawai#i 33, 40,

211 P.3d 750, 757 (2009) (concluding that "if the parties do not

raise the issue of a lack of subject matter jurisdiction, a court

sua sponte will." (brackets omitted) (quoting Tamashiro v. Dep't

of Human Servs., State of Hawai#i, 112 Hawai#i 388, 398, 146 P.3d

103, 113 (2006))).

The State's appeal from the Dismissal Orders is moot

because we cannot provide effective relief in these

circumstances. Even if we were to vacate the Dismissal Orders

and remand this case to the Family Court, Correia could not be

convicted of the offense – Abuse of Family or Household Members

in the Presence of a Household Member Less Than 14 Years of Age –

which the State seeks to retry.6/ See HRS § 701-109(1) and (4)

(Supp. 2018) (quoted infra).

The State is correct that "once instructional error is

demonstrated, we will vacate . . ., if there is a reasonable

possibility that the error contributed to the defendant's

conviction[.]" State v. Nichols, 111 Hawai#i 327, 337, 141 P.3d

974, 984 (2006). In such circumstances, we generally remand the

case for a new trial, unless we determine that substantial

evidence does not support the conviction or that retrial is

otherwise barred. See, e.g., State v. Kalaola, 124 Hawai#i 43,

62, 237 P.3d 1109, 1128 (2010) (affirming the ICA's judgment,

which vacated the defendant's conviction due to instructional

error and remanded for a new trial, where the supreme court

determined that sufficient evidence supported the conviction

based on part of the defendant's conduct, and double jeopardy did

not bar retrial with regard to that conduct). 

Here, however, we are not asked to vacate a conviction

due to instructional error. We are asked to vacate the dismissal

6/ Thus, we do not reach the State's contention that the Family Court

erred in dismissing Count 1 when it found instructional error.

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of Count 1 and to remand it for retrial, where, pursuant to the

Judgment, Correia has already been convicted and sentenced on

Count 2, and the parties do not dispute that Counts 1 and 2

merged. Morever, the judgment of conviction on Count 2 became

final with the dismissal of Correia's appeal in case no. CAAP-18-

0000897.7/ Thus, we cannot vacate the judgment of conviction on

Count 2, as the dissent suggests.

In these circumstances, HRS § 701-109(1) comes into

play.8/ 

HRS § 701-109 (Supp. 2018) states, in relevant part: 

(1) When the same conduct of a defendant may establish

an element of more than one offense, the defendant may be

prosecuted for each offense of which such conduct is an

element. The defendant may not, however, be convicted of

more than one offense if:

(a) One offense is included in the other, as defined

in subsection (4) of this section[.]

. . . .

(4) A defendant may be convicted of an offense

included in an offense charged in the felony complaint,

indictment, or information. An offense is so included when:

(a) It is established by proof of the same or less

than all the facts required to establish the

commission of the offense charged[.]

See State v. Alston, 75 Haw. 517, 532-33, 865 P.2d 157, 166

(1994) ("[A]n offense is a lesser included offense of another

offense if it 'satisfies the requirements set forth in HRS § 701-

109(4) which codifies the common law doctrine of lesser included

offenses." (original brackets omitted) (quoting State v. Burdett,

70 Haw. 85, 87, 762 P.2d 164, 165 (1988))).

"In order for the statutory protections against being

convicted of both a greater offense and its lesser included

offense to apply in a given case, the offenses must pertain to

7/ It also appears that Correia served all, or at least a substantial

part, of his 180-day sentence. See supra note 5 and accompanying text.

8/ In his answering brief, Correia argues in part that "reprosecution would be precluded by the double jeopardy clause." We construe

his argument as also invoking HRS § 701-109(1)(a). See State v. Brantley, 99

Hawai#i 463, 472, 56 P.3d 1252, 1261 (2002) (Levinson, J., concurring) ("[T]he

HRS § 701–109(1)(a) prohibition against convictions for both a lesser included

and the greater offense is grounded in the double jeopardy clause of the

Hawai#i Constitution[.]" (citing State v. Quitog, 85 Hawai#i 128, 130 n.4, 938

P.2d 559, 561 n.4 (1997)). 

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the same conduct, not separate conduct." State v. Kalua, 144

Hawai#i 7, 16, 434 P.3d 1202, 1211 (2019). Here, the Family

Court concluded, and the parties do not dispute, that Counts 1

and 2 merged. See HRS § 709-109(1)(e); State v. Martin, 146

Hawai#i 365, 390, 463 P.3d 1022, 1047 (2020) ("HRS § 709-

109(1)(e) interposes a constraint on multiple convictions arising

from the same criminal conduct") (citing State v. Matias, 102

Hawai#i 300, 305, 75 P.3d 1191, 1196 (2003)). Accordingly, there

is no dispute that Counts 1 and 2 pertained to the same conduct.

"The general rule is that 'an offense is included if it

is impossible to commit the greater without also committing the

lesser.'" State v. Manuel, 148 Hawai#i 434, 440, 477 P.3d 874,

880 (2020) (brackets omitted) (quoting State v. Friedman, 93

Hawai#i 63, 72, 996 P.2d 268, 277 (2000)). Here, it is

impossible to commit the greater offense of Abuse of Family or

Household Members in the Presence of a Household Member Less Than

14 Years of Age without also committing Abuse of Family or

Household Members. All of the elements of the lesser offense are

included in the definition of the greater offense, which also

requires proof that the alleged physical abuse occurred "in the

presence of a minor,9/ . . . and the minor is a family or

household member less than fourteen years of age[.]" HRS § 709-

906(9) (footnote added); see id. § 709-906(1). Thus, under HRS §

701-109(1)(a) and (4), Correia cannot be convicted of both

offenses. Cf. Brown v. Ohio, 432 U.S. 161 (1977) (barring the

defendant's reprosecution for auto theft following a conviction

for the lesser included offense of joyriding).

Accordingly, it is apparent from the record that we do

not have the ability to grant the State effective relief. Even

if we were to vacate the Dismissal Orders and remand this case to

the Family Court, Correia could not be convicted on Count 1

because a final and non-appealable judgment of conviction was

entered on Count 2, which pertains to the same conduct. The

State's appeal from the Dismissal Orders is therefore moot, and

9/ "'In the presence of a minor' means in the actual physical

presence of a child or knowing that a child is present and may hear or see the

offense." HRS § 706-606.4(2).

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this appeal must be dismissed for lack of subject matter

jurisdiction.

For these reasons, this appeal is dismissed.

On the briefs:

Steven K. Tsushima,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellant.

Emmanuel G. Guerrero

(Law Offices of Emmanuel G.

Guerrero, LLLC)

for Defendant-Appellee.

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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DISSENTING OPINION BY GINOZA, CHIEF JUDGE

I respectfully dissent because, in my view, the Family

Court of the First Circuit (Family Court) erred in dismissing

Count 1 and instead should have allowed a retrial on Count 1

given the court's determination that improper jury instructions

had been given. This court is able to provide appropriate relief

on the State's appeal from the erroneous dismissal of Count 1. 

Therefore, unlike the majority, I conclude this appeal is not

moot.

I. Jury Verdict and Merger Finding

A jury found Defendant-Appellee Joseph Correia III

(Correia) guilty on two counts:

• Count 1, that he abused his wife in the presence of

their seven-year-old daughter, a class C felony under

Hawaii Revised Statutes (HRS) §§ 709-906(1) and (9)

(Supp. 2019); and

• Count 2, that he abused his wife, a misdemeanor under

HRS §§ 709-906(1) and (5) (2014).1

The jury also answered special interrogatories that, the Family

Court determined and the parties do not contest, resulted in

Counts 1 and 2 merging.

II. Correia's Motion For New Trial

 and the Family Court's Error

After the jury verdict, Correia filed a "Motion for A

New Trial" asserting, inter alia, that the Family Court's jury

instructions with respect to Count 1 were defective. Correia

thus requested that the Family Court "set aside the guilty

verdict as to Count 1" and "grant his motion for a new trial." 

In considering Correia's motion for new trial, the Family Court

1 In Count 2, Correia was charged with abusing his wife by

intentionally or knowingly impeding the normal breathing or circulation of the

blood by applying pressure on her throat or neck, a class C felony, in

violation of HRS §§ 709-906(1) and (8) (2014). However, as to Count 2, the

jury found Correia guilty of the lesser included offense of abuse of a family

or household member, a misdemeanor under HRS §§ 709-906(1) and (5).
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determined that its jury instructions on Count 1 were in error.2

However, instead of granting a new trial on Count 1 -- as

requested by Correia -- the Family Court sua sponte issued orders

dismissing Count 1 (the felony), and then entered a Judgment on

October 25, 2018, convicting Correia on Count 2 (the

misdemeanor). The Judgment noted that Count 1 had been

dismissed.3

The Family Court's sua sponte actions precluded the

State from retrying Count 1 with proper jury instructions. Such

a retrial, as requested by Correia, is the usual and appropriate

manner of remedying a conviction where there is a reasonable

possibility that erroneous jury instructions contributed to the

conviction. See State v. Cabinatan, 132 Hawai#i 63, 78, 319 P.3d

1071, 1086 (2014) (vacating convictions and remanding for new

trial where the court concluded "there is a reasonable

possibility that the instructional error contributed to

[defendant]'s conviction"); State v. Nichols, 111 Hawai#i 327,

329, 141 P.3d 974, 976 (2006) (holding that "an appellate court

will reverse for plain error in jury instructions where the error

cannot be said to be harmless beyond a reasonable doubt" and

remanding the case "for a new trial"). In other words, the

Family Court's sua sponte action dismissed the felony count,

Count 1, without a jury having had an opportunity to consider the

merits of that count with appropriate jury instructions (and

after a jury had previously convicted on that count).

The Family Court's reasoning for the sua sponte action

it took was as follows:

3. While the court agrees that the instruction

on Count 1 was erroneous, this does not mean that no

2 The propriety of the jury instructions is not raised in this appeal. 

The focus in this appeal is whether, given the Family Court's determination

that the instructions on Count 1 were erroneous, the Family Court improperly

dismissed Count 1 sua sponte, instead of ordering a new trial on Count 1.

3 Pursuant to the Judgment, Correia was sentenced to two years of

probation subject to terms and conditions that included, inter alia, that he

"[s]erve a term of imprisonment of 180 days in [Count 2], effective

forthwith[.]"

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conviction can be had on Count 1, nor that a new trial

is warranted. The error in this instruction means

that the facts required for sentencing enhancement

under HRS § 706-606.4, were not properly found by the

jury, and the sentencing enhancement must be set

aside. 

4. Therefore, the jury's finding of physical

abuse under HRS § 709-906, with no felony sentencing

enhancement for "in the presence of a minor", still

stands, and supports a conviction for the misdemeanor

offense of Abuse of Family or Household Members. On

Count 1, the court thus finds that the misdemeanor

Abuse offense conviction still stands, and is

appropriate.

. . . .

6. Based on the jury's responses to the merger

interrogatories, however, Counts 1 and 2 do merge. 

Based on the jury's findings supporting merger, and in

light of this court's disposition of Count 1 above

reducing the offense to a misdemeanor, the Court

enters a dismissal of Count 1. Defendant will be

sentenced only on Count 2, at sentencing.

(Emphases added.) The Family Court's reasoning indicates that it

viewed the element of "in the presence of a minor" as only a

"sentencing enhancement" factor under HRS § 706-606.4.4

4 It appears the Family Court's reasoning stems from Correia's argument

in his Motion for New Trial that the jury instruction on Count 1 had set out

inconsistent states of mind, particularly that one part of the instruction

allowed for a "reckless" state of mind as to whether the abuse occurred "in

the presence of a minor," whereas another part of the instruction required

that Correia "intended or knew" that the minor was present. Correia asserted

a "knowing" state of mind was required under HRS § 706-606.4.

The jury instruction on Count 1 read, in relevant part:

A person commits the offense of Abuse of Family or Household

Members in the Presence of a Household Member Less than 14

Years of Age if he intentionally, knowingly, or recklessly

physically abuses a family or household member in the

presence of any family or household member who is less than

fourteen years of age. 

There are five material elements of the offense of Abuse of

Family or Household Members in the Presence of a Household

Member Less than 14 Years of Age, each of which the

prosecution must prove beyond a reasonable doubt. 

These five elements are: 

1. That, on or about June 25, 2017 in the City and

County of Honolulu, the Defendant physically

abused Danyal Correia; and

(continued...)

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However, Count 1 is based on HRS §§ 709-906(1) and

(9),5 which refers to HRS § 706-606.4 simply for the definition

of "in the presence of a minor[.]" Conduct in violation of HRS

§§ 709-906(1) and (9) constitutes a class C felony offense.6

4(...continued)

2. That the Defendant did so in the presence of a

minor, who was less than 14 years of age; and

3. That, at that time, Danyal Correia and the minor

were family or household members of the

Defendant; and

4. That the Defendant acted intentionally,

knowingly, or recklessly as to each of the

foregoing elements; and

5. That the Defendant intended or knew that the

physical abuse occurred in the presence of a

minor.

"In the presence of a minor" means in the actual physical

presence of a child or knowing that a child is present and

may hear or see the offense.

(Emphases added.)

5 As applicable to this case, HRS §§ 709-906(1) and (9) (Supp. 2019)

provided:

(1) It shall be unlawful for any person, singly or in

concert, to physically abuse a family or household member or

to refuse compliance with the lawful order of a police

officer under subsection (4). The police, in investigating

any complaint of abuse of a family or household member, upon

request, may transport the abused person to a hospital or

safe shelter.

. . .

(9) Where physical abuse occurs in the presence of a minor,

as defined in section 706-606.4, and the minor is a family

or household member less than fourteen years of age, abuse

of a family or household member is a class C felony.

(Emphases added.) Due to amendments to HRS § 709-906 that became effective in

January 2021, subsection (9) was renumbered to become subsection (10). See

2020 Haw. Sess. Laws, Act 19, § 3 at 275, 283.

6 A class C felony is subject to the following sentencing, in relevant

part:

[A] person who has been convicted of a . . . class C felony may be

sentenced to an indeterminate term of imprisonment . . . . When

ordering such a sentence, the court shall impose the maximum

length of imprisonment which shall be as follows:

(continued...)

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Separately, HRS § 706-606.47 sets out "aggravating factors" that

a trial court must consider, in addition to factors under HRS

§ 706-606, to determine the sentence for specified offenses,

including abuse of a family or household member.8

6(...continued)

. . .

(b) For a class C felony - five years.

The minimum length of imprisonment shall be determined by the

Hawaii paroling authority in accordance with section 706-669.

HRS § 706-660(1) (2014) (Emphasis added.)

On the other hand, a misdemeanor is subject to the following sentencing:

After consideration of the factors set forth in sections 706-606

[(factors to be considered in imposing a sentence)] and 706-621

[(factors to be considered in imposing a term of probation)], the

court may sentence a person who has been convicted of a

misdemeanor . . . to imprisonment for a definite term to be fixed

by the court and not to exceed one year in the case of a

misdemeanor . . . .

HRS § 706-663 (Supp. 2021) (Emphasis added.)

7 As applicable to this case, HRS § 706-606.4 (Supp. 2019) provided:

§ 706-606.4 Sentencing in enumerated offenses

committed in the presence of a minor. (1) In addition to

the factors considered under section 706-606, the court

shall consider the following aggravating factors in

determining the particular sentence to be imposed:

(a) The defendant has been convicted of committing

or attempting to commit an offense; and

(b) The offense contemporaneously occurred in the

presence of a minor.

(2) As used in this section:

"In the presence of a minor" means in the actual

physical presence of a child or knowing that a child is

present and may hear or see the offense.

"Offense" means a violation of section 707-710

(assault in the first degree), 707-711 (assault in the

second degree), 707-730 (sexual assault in the first

degree), 707-731 (sexual assault in the second degree),

707-732 (sexual assault in the third degree), or 709-906

(abuse of family or household members).

(Emphases added.)

8 At the time relevant to this case, HRS § 706-606.4 applied to:

assault in the first and second degree; sexual assault in the first, second,

(continued...)

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In short, "in the presence of a minor" is an element

for the felony offense set out in HRS §§ 709-906(1) and (9); it

is not just an aggravating factor for purposes of sentencing. 

Thus, in my view, the Family Court erred by: determining that its

erroneous jury instruction was only relevant to enhanced

sentencing; ruling that, because the jury found abuse on Count 1,

it could impose a conviction on Count 1 for misdemeanor abuse of

a family or household member; and then, because of merger, it

could dismiss Count 1 and enter judgment on Count 2.

In my view, having determined there had been error in

instructing the jury, the Family Court should have granted a new

trial on Count 1 as charged. If Correia was acquitted during

retrial on Count 1, judgment could then have been entered on

Count 2. If, however, Correia was found guilty during retrial on

Count 1, the State would then have had the option of convicting

Correia on either Count 1 or Count 2, and dismissing the other

count. See State v. Martin, 146 Hawai#i 365, 390-91, 463 P.3d

1022, 1047-48 (2020) (holding that defendant was convicted on

three counts for which the trial court plainly erred in not

giving a merger instruction and that "the State has the option of

dismissing two of the three charges and maintaining the judgment

of conviction and sentence on one charge." (footnote and citation

omitted)); State v. Hardoby, SCWC-18-0000781, 2021 WL 1250382, at

*6 (Haw. April 5, 2021) (mem.); State v. Padilla, 114 Hawai#i

507, 517, 164 P.3d 765, 775 (App. 2007).

In Padilla, the defendant was convicted and judgment

was entered on two counts: felon in possession of a firearm or

ammunition; and place to keep a loaded pistol or revolver. 114

Hawai#i at 508-09, 164 P.3d at 766-67. On appeal, this court

8(...continued)

and third degree; and abuse of a family or household member. Further, the

aggravating sentencing factors in HRS § 706-606.4 apply when the offense

occurs, inter alia, in the presence of a "minor," which is undefined in that

statute; whereas the class C felony under HRS § 709-906(1) and (9) requires

that the abuse occur in the presence of a minor who, inter alia, is "less than

fourteen years of age[.]"

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held that the circuit court had plainly erred in failing to give

a merger instruction for the two counts on which the defendant

had been convicted. Id. at 509, 164 P.3d at 767. However, it

was noted that HRS § 701-109 "only prohibits conviction for two

offenses if the offenses merge; it specifically permits

prosecution on both offenses[,]" and thus where the jury found

the defendant guilty on two merged charges, the State had the

option of either (1) dismissing one count and entering judgment

on the non-dismissed count or (2) retrying the defendant on both

counts with a merger instruction. Id. at 517, 164 P.3d at 775

(underline emphasis added); see also State v. Feliciano, 107

Hawai#i 469, 480, 115 P.3d 648, 659 (2005) (stating that "the

double jeopardy clause (as applied in 'multiple punishments'

cases) ensures that the courts cannot punish a defendant beyond

what is authorized by the legislature." (emphasis added)). In

Padilla, this court therefore vacated the judgment that had been

entered on both counts and remanded for further proceedings. 114

Hawai#i at 518, 164 P.3d at 776.

III. Appropriate Relief on the State's Appeal

The State relies on HRS §§ 641-13(1) and (9) (2016) as

the statutory authority for its appeal. In his answering brief,

Correia appears to contend this court lacks appellate

jurisdiction under these provisions, although his argument is

based on a mixture of seeking to define what has occurred in this

unusual case, his interpretation of HRS § 641-13, and general 

assertions that HRS §§ 701-109(2) and (3) (2014), as well as

double jeopardy, preclude a retrial. 

A. The State's Appeal is Proper Under HRS § 641-13(1)

HRS § 641-13 provides in pertinent part:

§ 641-13 By State in criminal cases. An appeal may

be taken by and on behalf of the State from the district or

circuit courts to the intermediate appellate court, subject

to chapter 602, in all criminal matters, in the following

instances:

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(1) From an order or judgment quashing, setting

aside, or sustaining a motion to dismiss any

indictment, information, or complaint or any

count thereof;

. . .

(9) From a judgment of acquittal following a jury

verdict of guilty[.] 

I conclude the State's appeal is proper under HRS

§ 641-13(1). In State v. Poohina, 97 Hawai#i 505, 509-10, 40

P.3d 907, 911-12 (2002), the Hawai#i Supreme Court addressed its

appellate jurisdiction over the State's appeal where a district

court had sua sponte decided, following closing arguments at

trial, to orally grant an acquittal and subsequently entered a

written order styled as an order granting a motion to dismiss. 

The case involved a criminal contempt charge for violating an

injunction, and the district court sua sponte determined that the

complainant was no longer protected by the injunction because it

was issued when she was a minor and she had since become an

adult. 97 Hawai#i at 507-08, 40 P.3d at 909-10. The State

asserted its right to appeal under HRS § 641-13(1). Id. at 509,

40 P.3d at 911. 

The defendant argued, inter alia, that HRS § 641-13(1)

was inapplicable because the district court's order was actually

a judgment of acquittal and he also asserted that principles of

double jeopardy applied. Id. The Hawai#i Supreme Court stated

"[t]he district court's order was not a judgment of acquittal,

and even if it were, it would have been an acquittal in form

only. The principles of double jeopardy do not apply because a

decision as to Poohina's guilt was never considered." Id. More

specifically, the court expressed:

The decision of the trial court was not a judgment of

acquittal. This court has cautioned against raising form

over substance. Concern over this type of jurisdictional

issue has led this court to state that "while form is not to

be exalted over substance in determining the double jeopardy

consequences of a rule terminating a prosecution, neither is

it appropriate entirely to ignore the form of the order

entered by the trial court." State v. Lee, 91 Hawai#i 206,

209, 982 P.2d 340, 343 (1999) (citing Sanabria v. United

States, 437 U.S. 54, 66, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)

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(citation and brackets omitted)). Thus, what constitutes an

acquittal is more dependent upon the intent of the ruling

rather than the label. Id. at 209, 982 P.2d at 343. In that

respect, this court adopted the United States v. Martin

Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51

L.Ed.2d 642 (1977) test in which "[a] defendant is acquitted

only when 'the ruling of the judge, whatever its label,

actually represents a resolution in the defendant's favor,

correct or not, of some or all of the factual elements of

the offense charged.'" State v. Dow, 72 Haw. 56, 64, 806

P.2d 402, 406 (1991) (citing Martin Linen Supply, 430 U.S.

at 571, 97 S.Ct. 1349).

Id. at 509-10, 40 P.3d at 911-12 (emphases added). The Hawai#i

Supreme Court reasoned that the district court had not reached

the merits of the case, did not enter any decision as to the

defendant's guilt, and thus its action "can in no way be

interpreted as an acquittal in substance." Id. at 510, 40 P.3d

at 912. The supreme court thus concluded the district court's

written "order granting defendant's motion to dismiss" accurately

reflected the course of the proceedings and the order was

appealable under HRS § 641-13(1). Id. The supreme court stated

that "[a]lthough the order was not entered in response to a

motion, it was an order of dismissal appealable under HRS

§ 641–13(1)." Id. (footnote omitted). After determining the

district court had improperly dismissed the case, the supreme

court "reverse[d] the judgment of the trial court and remand[ed]

the case for further proceedings." Id. at 512, 40 P.3d at 914

(emphasis added).

This court, in State v. Markowski, 88 Hawai#i 477, 479-

82, 967 P.2d 674, 676-79 (App. 1998), similarly looked to the

essence of the trial court's rulings, not just the title of the

rulings, to determine whether a State's appeal was proper under

HRS § 641-13(1). In Markowski, this court held that a "judgment

of acquittal" on three counts based on defective charging,

entered by the circuit court after the State had rested its case

in a jury trial, was not a true acquittal. 88 Hawai#i at 479-81,

967 P.2d at 676-78. "[W]hat constitutes an 'acquittal' is not to

be controlled by the form of the judge's action." Id. at 483,

967 P.2d at 680 (citation omitted). Rather, "a defendant is

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acquitted only when the ruling of the judge, whatever its label,

actually represents a resolution in defendant's favor, correct or

not, of some or all of the factual elements of the offense

charged." Id. (citation, internal quotation marks, emphases and

brackets omitted); cf. Evans v. Michigan, 568 U.S. 313, 317, 324

(2013). In Markowski, the trial court had entered the judgment

of acquittal on four counts –- on the merits as to count I and

due to defective charging on counts II, III and IV.9 88 Hawai#i

at 480-81, 967 P.2d at 677-78. Subsequently, the trial court

also entered an order dismissing counts II, III and IV due to

defective charging. Id. at 481-82, 967 P.2d at 678-79. The

State appealed only from the order of dismissal, and this court

determined it had jurisdiction under HRS § 641-13(1). Id. at

482, 967 P.2d at 679. We further held the defendant would not be

subjected to double jeopardy if he was retried because the

judgment of acquittal was unrelated to the defendant's factual

guilt or innocence, we vacated both the judgment of acquittal and

the order of dismissal as to counts II, III and IV, and then

remanded the case for a new trial on the three counts. Id. at

484, 489, 967 P.2d at 681, 686.

In this case, the Family Court did not acquit Correia

of Count 1, did not address or resolve any factual elements of

the offense, and did not consider in any way the sufficiency of

the evidence presented. Rather, notwithstanding its

determination that the jury instructions on Count 1 were

incorrect, the Family Court accepted the jury's finding of abuse

and decided the "misdemeanor Abuse offense conviction still

stands[.]" Then, due to the jury's findings on merger and the

court's sua sponte disposition of Count 1 reducing it to a

misdemeanor offense, the Family Court dismissed Count 1 and

entered judgment against Correia only on Count 2.

9 A total of four counts were charged in Markowski and only count I

reached the jury, which returned a verdict of not guilty on that count. 88

Hawai#i at 480-81, 967 P.2d at 677-78.

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Under these circumstances, Correia clearly was not

acquitted of any charge and instead, because of the interplay of

the merger doctrine in this case, the Family Court dismissed

Count 1. Like in Poohina, although Correia never filed a motion

to dismiss Count 1, the State's appeal is still a proper appeal

pursuant to HRS § 641-13(1) because the Family Court dismissed

Count 1 and thus this court has jurisdiction.10 97 Hawai#i at

510, 40 P.3d at 912.

B. HRS §§ 701-109(2) and (3), and Double Jeopardy, Do Not

Preclude Retrial on Count 1 

Correia asserts that HRS §§ 701-109(2) and (3) preclude

a retrial on Count 1. These provisions state:

(2) Except as provided in subsection (3) of this section, a

defendant shall not be subject to separate trials for

multiple offenses based on the same conduct or arising from

the same episode, if such offenses are known to the

appropriate prosecuting officer at the time of the

commencement of the first trial and are within the

jurisdiction of a single court.

(3) When a defendant is charged with two or more offenses

based on the same conduct or arising from the same episode,

the court, on application of the prosecuting attorney or of

the defendant, may order any such charge to be tried

separately, if it is satisfied that justice so requires.

Correia does not cite any case law in support.

In State v. Deedy, 141 Hawai#i 208, 407 P.3d 164

(2017), the Hawai#i Supreme Court rejected the defendant's

argument that HRS § 701-109(2) precluded a retrial after a jury

deadlocked on certain offenses and a mistrial was declared. Id.

at 222, 407 P.3d at 178. The supreme court explained:

HRS § 701-109(2) simply has no application in this case

because all offenses with which Deedy was charged were tried

together at the first and second trials. Instead, HRS

§ 701-109(2) applies where there are charges arising from

the same conduct or the same episode and the State attempts

to try those charges separately. In this case, Deedy was

not being charged separately for the same course of conduct;

there is but one criminal action filed in the circuit court.

As discussed supra, a retrial on reckless manslaughter and

the included assault offenses is merely a "continuation" of

the same prosecution following the declaration of a mistrial

when the jury was deadlocked as to those offenses.

Id. (emphasis added) (citations omitted).

10 Given my conclusion under HRS § 641-13(1), I do not address HRS

§ 641-13(9).

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Similar to Deedy, a retrial in this case on Count 1 is

not precluded under HRS § 701-109(2) because Counts 1 and 2 have

been prosecuted in one criminal action. A retrial on Count 1,

with proper jury instructions, would be a continuation of the

same prosecution to address the erroneous instructions provided

to the jury in the first trial.

Moreover, although double jeopardy bars a retrial when

a conviction is reversed due to insufficient evidence, double

jeopardy does not preclude retrial when a conviction is reversed

due to trial error, such as erroneous jury instructions. State

v. Kalaola, 124 Hawai#i 43, 60, 237 P.3d 1109, 1126 (2010). In

analyzing cases addressing double jeopardy, the Hawai#i Supreme

Court stated:

The [U.S. Supreme Court] further explained that "the double

jeopardy clause forbids a second trial for the purpose of

affording the prosecution another opportunity to supply

evidence which it failed to muster in the first proceeding. 

[Burks v. United States, 437 U.S. 1, 11 (1978)]. The Court

also distinguished reversal for evidentiary insufficiency

from that for trial error:

In short, reversal for trial error, as

distinguished from evidentiary

insufficiency, does not constitute a

decision to the effect that the government

has failed to prove its case. As such, it

implies nothing with respect to the guilt

or innocence of the defendant. Rather, it

is a determination that a defendant has

been convicted through a judicial process

which is defective in some fundamental

respect, e.g., incorrect receipt or

rejection of evidence, incorrect

instructions, or prosecutorial misconduct.

When this occurs, the accused has a strong

interest in obtaining a fair

readjudication of his guilt free from

error, just as society maintains a valid

concern for insuring that the guilty are

punished.

Id. at 15, 98 S.Ct. 2141 [ ].

. . . .

Relying on Burks, this court has determined that "the

prohibition against double jeopardy applies where the

reversal is based on insufficiency of evidence." [State v.]

Bannister, 60 Haw. [658,] 660, 594 P.2d [133,] 135 [(1979)].

. . . .

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However, the prohibition does not apply

where judgment is reversed for a trial

error because the effect of the decision

does not constitute a failure of the

government to prove its case. [Burks, 437

U.S.] at 10.

. . . . 

[Bannister, 60 Haw.] at 660, 594 P.2d at 135[.]

Kalaola, 124 Hawai#i at 57-58, 237 P.3d at 1123-24 (emphases

added) (brackets and some emphases omitted).

Here, as noted previously, there was no acquittal on

Count 1 and no determination based on lack of sufficient

evidence. Indeed, Correia does not contend that double jeopardy

bars a retrial based on insufficient evidence presented in the

jury trial. Thus, given the instructional error in the jury

trial, I would vacate the orders dismissing Count 1, vacate the

Judgment of conviction on Count 2, and order a retrial on Count

1. Although the Family Court entered the Judgment on Count 2

(because of its determination that Counts 1 and 2 merged), there

is no reason this court cannot vacate that Judgment as part of

addressing the State's proper appeal. With respect to double

jeopardy, this case is effectively no different than Cabinatan or

Nichols, where a judgment of conviction had been entered and, due

to instructional error, the judgment was subsequently vacated on

appeal and a new trial was ordered. Cabinatan, 132 Hawai#i at

78, 319 P.3d at 1086; Nichols, 111 Hawai#i at 329, 141 P.3d at

976. Further, in a criminal case where the State appealed from a

dismissal order and this court determined there had been error in

dismissing three counts, we vacated both the dismissal order and

a related judgment, even though the appeal was taken only from

the dismissal order. Markowski, 88 Hawai#i at 481-82, 489, 967

P.2d at 678-79, 686; cf. Poohina, 97 Hawai#i at 512, 40 P.3d at

914.

Even with a new trial on Count 1, Hawai#i's statute on

merger (HRS § 701-109) permits prosecution on both Counts 1 and

2, so long as Correia is not convicted on both offenses that

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merge. Martin, 146 Hawai#i at 390-91, 463 P.3d at 1047-48;

Padilla, 114 Hawai#i at 517, 164 P.3d at 775. Should Correia be

found guilty on Count 1 during a retrial, the State would then

have the option of dismissing one of the counts and having

Correia convicted on the remaining count. Martin, 146 Hawai#i at

391, 463 P.3d at 1048; Padilla, 114 Hawai#i at 517, 164 P.3d at

775. However, should Correia be acquitted on Count 1 during a

retrial, judgment could then be re-entered on Count 2.

In either scenario, Correia would be entitled to time

served and any other appropriate consideration with respect to

sentencing. That is, after retrial on Count 1, whether Correia

was ultimately convicted on Count 1 or convicted on Count 2, he

would be entitled to full credit for the time he has served and

any other aspect of the sentence he has fulfilled under the

Judgment that was entered on October 25, 2018. In Wong v. Among,

52 Haw. 420, 425, 477 P.2d 630, 634 (1970), the Hawai#i Supreme

Court vacated judgments of conviction against the defendant

because he had plead guilty without being afforded his right to

counsel. In addressing double jeopardy issues on remand, the

supreme court concluded:

Because of the above constitutional improprieties, it is the

determination of this court that petitioner's convictions in

Cr. Nos. 26063, 26116, and 26147 are null and void and are

hereby set aside and the judgments entered therein are

vacated.

Having fully served his sentence on the charges of forgery

and passing a forged writing, Cr. No. 26147, petitioner's

constitutional guarantee against double jeopardy protects

him against further penalty on this charge. Ex Parte Lange,

85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). Should the

petitioner, upon remand of this case, be retried and

convicted on either or both of the other two charges, the

Fifth Amendment's prohibition against double jeopardy

requires that he be given full credit against any new

sentence for time served under the convictions which today

we set aside.

Id. (emphases added) (footnote omitted) (further citing North

Carolina v. Pearce, 395 U.S. 711, 718 (1969), overruled on other 

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grounds by Alabama v. Smith, 490 U.S. 794 (1989)); see also Jones

v. Thomas, 491 U.S. 376 (1989) (holding that defendant's double

jeopardy rights were not violated where he was initially

convicted and sentenced on two offenses, the shorter sentence was

commuted and later vacated after he had completed that sentence,

and he was credited for time served on the shorter sentence

against his remaining longer sentence). In this case, Correia

can be retried on Count 1 while still protecting his double

jeopardy rights because he would not be "punished multiple times

for the same offense." See Feliciano, 107 Hawai#i at 476, 115

P.3d at 655.

IV. Conclusion

Based on the foregoing, I therefore respectfully

dissent. I would vacate the Family Court's orders dismissing

Count 1, vacate the Judgment entered on October 25, 2018, and

remand the case for a new trial on Count 1, with further

proceedings to address merger and double jeopardy concerns as set

forth above.

/s/ Lisa M. Ginoza

Chief Judge

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