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NO. CAAP-19-0000007

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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

LYDA J. ABELLIRA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CRIMINAL NO. 1CPC-17-0001250)

SUMMARY DISPOSITION ORDER

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

Defendant-Appellant Lyda J. Abellira (Abellira) appeals

from the Judgment of Conviction and Probation Sentence

(Judgment), entered on December 4, 2018, in the Circuit Court of

the First Circuit (circuit court).1/ After a jury trial, Abellira

was convicted of Assault in the Third Degree, in violation of HRS

§ 707-712,2/ and Terroristic Threatening in the First Degree

1/ The circuit court entered an Amended Judgment of Conviction and

Probation Sentence (Amended Judgment) on December 13, 2018, following 

Plaintiff-Appellee State of Hawaii's (State) post-judgment Motion to Modify

Probation to Add Term and Condition. Abellira's notice of appeal is deemed to

appeal from the Amended Judgment. See Hawai#i Rules of Appellate Procedure

Rule 4(a)(3). The Honorable Shirley M. Kawamura presided over the trial, as

well as entry of the Judgment and the Amended Judgment.

2/ HRS § 707-712 (2014) provides, in relevant part:

(1) A person commits the offense of assault in the third

degree if the person:

(a) Intentionally, knowingly, or recklessly causes

bodily injury to another person; or

(b) Negligently causes bodily injury to another

person with a dangerous instrument.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000007

05-MAY-2021

07:52 AM

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(TT1), in violation of HRS § 707-716(1)(e).3/

On appeal, Abellira raises a single point of error, 

contending that the circuit court erred in instructing the jury

on the TTI charge by failing to give a specific unanimity

instruction regarding the persons threatened.

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Abellira's point of error as follows, and vacate the Judgment and

the Amended Judgment as to Abellira's conviction for TT1. 

We first note that Abellira failed to object to the

alleged deficiency in the jury instructions at trial. "As a

general rule, jury instructions to which no objection has been

made at trial will be reviewed only for plain error. An error

will be deemed plain error if the substantial rights of the

defendant have been affected adversely." State v. Sheffield, 146

Hawai#i 49, 53, 456 P.3d 122, 126 (2020) (quoting State v.

Henley, 136 Hawai#i 471, 478, 363 P.3d 319, 326 (2015)).

[A]lthough as a general matter forfeited assignments of

error are to be reviewed under Hawai#i Rules of Penal

Procedure (HRPP) Rule 52(b) plain error standard of review,

in the case of erroneous jury instructions, that standard of

review is effectively merged with the HRPP Rule 52(a)

harmless error standard of review because it is the duty of

the trial court to properly instruct the jury. As a result,

once instructional error is demonstrated, we will vacate,

without regard to whether timely objection was made, if

there is a reasonable possibility that the error contributed

to the defendant's conviction, i.e., that the erroneous jury

instruction was not harmless beyond a reasonable doubt.

3/ HRS § 707-716 (2014) provides, in relevant part:

(1) A person commits the offense of terroristic threatening

in the first degree if the person commits terroristic

threatening:

. . . .

(e) With the use of a dangerous instrument. . . .

HRS § 707-715 (2014) states, in relevant part:

 

A person commits the offense of terroristic threatening if

the person threatens, by word or conduct, to cause bodily

injury to another person . . . :

(1) With the intent to terrorize, or in reckless

disregard of the risk of terrorizing, another

person[.]

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State v. Malave, 146 Hawai#i 341, 348, 463 P.3d 998, 1005 (2020)

(original brackets omitted) (quoting State v. Nichols, 111

Hawai#i 327, 337, 141 P.3d 974, 984 (2006)). 

Relying on State v. Auld, 114 Hawai#i 135, 157 P.3d 574

(App. 2007), Abellira contends that "the circuit court reversibly

erred in failing to instruct the jury with a specific unanimity

instruction regarding the person(s) threatened, and as a result

there was a genuine possibility that the jurors were not

unanimous as to the person(s) threatened." Abellira

acknowledges:

The trial court instructed the jury with a general

unanimity instruction . . . [which] instruct[ed] the jury

"that they must be unanimous as to the verdict." Auld, 114

Hawai#i at 139, 157 P.3d 578. This is in contrast to a

specific unanimity instruction which instructs the jury that

"all twelve of its members must agree that the same

underlying criminal act has been proved beyond a reasonable

doubt." Id. 

(Some citations omitted.) Abellira argues that, here, the

circuit court instructed the jury that the State had to prove

beyond a reasonable doubt that Abellira "threatened and had the

intent to terrorize Timothy and/or E#olu#i and/or E#le#a and/or

Nalani and/or Kim."4/ Abellira concludes that "[w]ithout a

specific unanimity instruction as to the person(s) threatened[,]

each of the twelve jurors could have based his or her

determination of guilt on a finding of no less than 31 different

victim alternatives." 

We conclude that with respect to the TT1 charge, the

circuit court plainly erred in failing to give a specific

instruction requiring unanimity as to the person(s) threatened.

In Auld, this court ruled that a unanimity requirement

"applies as much (a) to the person(s) threatened as it does (b)

to the threatening conduct." 114 Hawai#i at 142, 157 P.3d at

581. There, the defendant was charged with two counts of TT1

(Counts One and Five). Id. at 136, 157 P.3d at 575. At trial,

the prosecution adduced evidence of several persons that the

defendant had threatened, as well as multiple acts by the

4/ The complaining witnesses in this case are Timothy Kwan Rodrigues

(Timothy), E#olu#i Ilae (E#olu#i), E#le#a Ilae (E#le#a), Relina "Nalani" AgbayaniHo Ching (Relina), and Kim Ilae (Kim).

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defendant, that served as the basis for the two TT1 counts. Id.

at 136–37, 157 P.3d at 575–76. No specific unanimity instruction

was given regarding which persons were threatened in which count,

and the jury convicted the defendant on both TT1 counts. Id. at

136, 138, 157 P.3d at 575, 577. In vacating the defendant's

convictions, this court reasoned that the jury instruction at

issue

states that one of the elements of Count One is that Auld

terroristically threatened Salina, Kiana "and/or" Liane,

thus permitting the jury to decide that Auld terroristically

threatened Salina, Kiana, or Liane. Without any instruction

requiring unanimity as to the person(s) threatened, each of

the twelve jurors could have based his or her determination

of guilt on a finding of [seven] victim alternatives. . . . 

Allowing each juror seven choices and not requiring all

jurors to agree on no less than one violates the rule

requiring a unanimous jury regarding the person(s)

threatened, which was necessary to prove the offense

charged.

Id. at 143–44, 157 P.3d at 582–83 (emphasis added). "In other

words, because there was a possibility that the conviction

resulted from different jurors concluding that the defendant

committed a specific act, but with respect to different persons,

there was no way to determine whether the jury produced a

unanimous verdict with respect to the person or persons against

whom each crime was committed." State v. Mundon, 121 Hawai#i

339, 354, 219 P.3d 1126, 1141 (2009) (construing Auld). 

Accordingly, the ICA vacated the TT1 convictions and remanded for

a new trial. Auld, 114 Hawai#i at 145, 157 P.3d at 584.

Here, the circuit court's jury instructions for TT1

required the jury to determine, among other things, that Abellira

threatened to cause bodily injury to "TIMOTHY KWAN-RODRIGUES

and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANI-HO

CHING and/or KIM ILAE" with the intent to terrorize or in

reckless disregard of the risk of terrorizing "TIMOTHY KWANRODRIGUES and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA

AGBAYANI-HO CHING and/or KIM ILAE."5/ 

5/ The jury was instructed in relevant part as follows:

In Count II of the Indictment, the Defendant, LYDA J.

ABELLIRA, is charged with the offense of Terroristic

Threatening in the First Degree.

(continued...)

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5/ (...continued)

This offense can be committed in either of two ways:

Terroristic Threatening in the First Degree (Intent to

Terrorize) or Terroristic Threatening in the First

Degree(Reckless Disregard of Terrorizing).

Intent to Terrorize

As to the first alternative, a person commits the

offense of Terroristic Threatening in the First Degree

(Intent to Terrorize) if, with the intent to terrorize

another person, she threatens, by word or conduct, to cause

bodily injury to another person with the use of a dangerous

instrument.

There are four material elements of the offense of

Terroristic Threatening in the First Degree (Intent to

Terrorize), each of which the prosecution must prove beyond

a reasonable doubt.

These four elements are:

1. That, on or about September 1, 2017, in the City

and County of Honolulu, the Defendant threatened, by word or

conduct, to cause bodily injury to TIMOTHY KWAN-RODRIGUES

and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANIHO CHING and/or KIM ILAE; and

2. That the Defendant did so with the intent to

terrorize TIMOTHY KWAN-RODRIGUES and/or E#OLU#I ILAE and/or

E#LE#A ILAE and/or RELINA AGBAYANI-HO CHING and/or KIM ILAE;

and

3. That the Defendant did so with the use of a

dangerous instrument; and

4. That the Defendant acted intentionally as to

element 3.

Reckless Disregard of Terrorizing

As to the second alternative, a person commits the

offense of Terroristic Threatening in the First Degree

(Reckless Disregard of Terrorizing) if, in reckless

disregard of the risk of terrorizing another person, she

threatens, by word or conduct, to cause bodily injury to

another person with the use of a dangerous instrument.

There are four material elements of the offense of

Terroristic Threatening in the First Degree (Reckless

Disregard of Terrorizing), each of which the prosecution

must prove beyond a reasonable doubt.

These four elements are:

1. That, on or about September 1, 2017, in the City

and County of Honolulu,the Defendant threatened, by word or

conduct, to cause bodily injury to TIMOTHY KWAN-RODRIGUES

and/or E#OLU#I ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANIHO CHING and/or KIM ILAE; and

2. That the Defendant did so in reckless disregard of

the risk of terrorizing TIMOTHY KWAN-RODRIGUES and/or E#OLU#I

ILAE and/or E#LE#A ILAE and/or RELINA AGBAYANI-HO CHING

(continued...)

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In addition, the State told the jury during closing argument:

Then going onto the terroristic threatening. Now -- oh, and

I'm sorry, with regard to the Assault 2, there was one act. 

There was one act only. You guys don't have to figure out

which one. It's the act where she swung and she hit Timothy.

That's simple. There were a couple times where she swung at

Eolui and then there was the time that she reversed the van

into five of the people there or towards five of the people

there. That's the part with the instruction talking about

different acts can be the basis for it.

So, item one, if you . . . unanimously agree that she

did take a swing or two at Eolui, at his head, fortunately

didn't hit him, chain's still a dangerous instrument. 

That's a TT1 there, which because every -- remember, the

list of people, we don't have to prove all beyond a

reasonable doubt, just one of them, and/or, and/or, and/or,

and/or, but there is the second incident. She did reverse

her van into the area where the five were there. Mom was

quite clear about who was there and, again, she even came

out, simply because she was worried about everyone else, so

she's paying attention to that.

 

As in Auld, the jury instructions for TT1 impermissibly

allowed each juror numerous choices, involving five complaining

witnesses, and did not require all jurors to agree on no less

than one complaining witness. 114 Hawai#i at 143-44, 157 P.3d at

582-83. In its closing argument, the State advocated for a

guilty verdict on the TT1 charge based on the same "and/or"

language in the jury instructions.

The State contends that "no victim-specific unanimity

instruction" was required because a specific unanimity

instruction was given with respect to the acts committed by

Abellira6/, and "there was no chance of jury confusion" as to "the

victim(s) of each act" underlying the TT1 count. The State

argues that "[i]nsofar as Eolui was identified as the victim for

5/ (...continued)

and/or KIM ILAE; and

3. That the Defendant did so with the use of a

dangerous instrument; and

4. That the Defendant acted recklessly as to element

3.

6/ The jury was instructed as follows: 

The law allows the introduction of evidence for the

purpose of showing that there is more than one act upon

which proof of an element of an offense may be based. In

order for the prosecution to prove an element, all twelve

jurors must unanimously agree that the same act has been

proved beyond a reasonable doubt.

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the act of swinging the chain," there was no chance of jury

confusion as to the victim of that act. As to the act of

reversing the van, the State argues that "[b]ased on the evidence

presented, Eolui, Tim, Elea, and Relina were standing together as

a group[,]" and "it would have been impossible to reverse towards

one person and not the others[.]"

The State's argument only highlights the jury unanimity

issue here. Given the ambiguous "and/or" language of the TT1

jury instructions and the absence of a threatened-person-specific

instruction, each juror could have had a different view of which

complaining witness Abellira terroristically threatened and could

have based his or her determination of guilt on a finding of

numerous alternatives. The fact that one of the alternatives

involved a specific alleged act and complaining witness (the

swinging of the chain as to E#olu#i) does not resolve the problem,

as it is possible that the jury did not unanimously agree on this

alternative, given the availability of numerous other

alternatives involving the reversing of the van. As to the

latter act, there was varying testimony at trial as to which

complaining witnesses were part of the "group" in the path of the

van and where each complaining witness was standing during the

relevant time period.7/ 

On this record, we cannot conclude that the omission of

a threatened-person-specific unanimity instruction was harmless

beyond a reasonable doubt. As a result, we conclude that when

read and considered as a whole, the instructions given were

prejudicially insufficient and erroneous, and the judgment of

conviction as to the TT1 charge must be set aside.

Therefore, IT IS HEREBY ORDERED that the Judgment of

Conviction and Probation Sentence and the Amended Judgment of

7/ For example, Timothy testified that if he had not moved off the

road, he would have been hit by the van. Barbara Pascua, a witness to the

incident, testified that Abellira put the van in reverse and "swerved the

vehicle in the direction of" E#olu#i and his girlfriend (Relina). E#olu#i

testified that his mother (Kim), his sister (E#le#a), and his girlfriend

(Relina) had to get out of the way of the van's path, but that he did not. 

When asked who was in the area when Abellira was reversing, E#le#a responded,

"[m]e, Relina, Eolui, my mom [Kim], and I think Tim but I'm not too sure." 

Relina testified that she, E#olu#i, E#le#a, and Kim were all standing in the

same area and had to run out of the way of the van, but could not remember if

Timothy was there.

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Conviction and Probation Sentence, entered on December 4 and 13,

2018, respectively, in the Circuit Court of the First Circuit,

are vacated only as to Count Two, Terroristic Threatening in the

First Degree. The case is remanded to the circuit court for a

new trial on Count Two, with instructions to provide the jury

with a specific unanimity instruction as to the person(s)

threatened, and for further proceedings consistent with this

summary disposition order.

DATED: Honolulu, Hawai#i, May 5, 2021.

On the briefs:

Taryn R. Tomasa,

Deputy Public Defender,

for Defendant-Appellant.

Sonja P. McCullen,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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