ICA affirms in part and reverses in part multiple counts of convictions

On July 19, 2011, the ICA issued its opinion in State v. Palmer, No. 30418 (7/19/11, Unpublished, ICA- Summary Disposition Order, by: Nakamura, Chief Judge, Leonard and Ginoza, JJ.) This was an appeal from the Circuit Court of the Second Circuit, Honorable Joseph E. Cardoza presiding. On the briefs were Deputy Public Defender Phyllis Hironaka, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for Deputy Prosecuting Attorney for Plaintiff-Appellee.

After a jury trial, Palmer was found guilty of the following offenses: Unlawful Imprisonment in the First Degree (Imprisonment 1) (Count 1); Terroristic Threatening in the First Degree (TT1) (Count 2); Abuse of Family or Household Member (Household Abuse) (Count 3); and Assault in the Third Degree (Assault 3) (the lesser included offense of Count 4).

On appeal, the ICA held:

Evidence was presented that Palmer "restrained," or "restrict[ed]" Complainant's "movement in such a manner as to interfere substantially with" her "liberty . . . [b]y means of force . . . [or] threat," as required under HRS § 707-700, by touching the knife to the side of Complainant's neck, at her throat. There was substantial evidence that the circumstances "expose[d]" Complainant "to the risk of serious bodily injury," as set forth in HRS § 707-721, including that Palmer's holding the knife against the side of Complainant's neck created a substantial risk of death, § 707-700, especially considering the testimony that he contemporaneously threatened to kill her, and that he had been drinking and flinging a knife, which he then stuck into the kitchen cabinet.

Evidence was also adduced that Palmer would not allow Complainant to leave the small master bathroom -- where he pushed her about a dozen times, including at least three times into the wall and once into the bathtub, hurting her side, and whacked her head against a door, causing her to lose one of her porcelain crowns.

In addition, the State presented evidence that Palmer had locked and taken the only key to the deadbolt on the front door, refused entry to the police, and called Complainant his "hostage." This was sufficient to support a conviction for unlawful imprisonment in the first degree.

The ICA also concluded that the Circuit Court erred by failing to instruct the jury that if it found Palmer guilty of both Household Abuse and Assault 2 or Assault 3, the jury must determine whether the State had proven beyond a reasonable doubt that the offenses did not merge. . . . The State conceded that the Circuit Court erred in failing to give a merger instruction and has indicated its election that Palmer's Assault 3 conviction be dismissed.

Held: The ICA vacated the Circuit Court's judgment, in part, and remand this case to the Circuit Court for the dismissal of Count 4, with prejudice, and for the entry of an amended judgment and sentence consistent with this summary disposition order. In all other respects, we affirm.