State v. Pecpec
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Orlando Pecpec was charged in the family court with twenty-five counts of violation of an order for protection in relation to twenty-five voicemails and text messages he allegedly sent to his former spouse. The jury found PecPec guilty on nineteen counts. Pecpec challenged his convictions on eight counts, arguing they were obtained in violation of his right to an unanimous verdict because the jury was not specifically instructed that it was required to unanimously agree to the specific act that supported each count. The Supreme Court affirmed, holding (1) under State v. Mundon, the family court was required to give a specific unanimity instruction in the circumstances of the instant case; but (2) the family court's error in this case was harmless because there was no reasonable possibility that Pecpec was convicted on less than a unanimous verdict.
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***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** Electronically Filed Supreme Court SCWC-30500 20-MAR-2012 08:17 AM IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--STATE OF HAWAI#I, Respondent/Plaintiff-Appellee, vs. ORLANDO PECPEC, Petitioner/Defendant-Appellant. NO. SCWC-30500 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30500; CR. NO. 09-1-2378) MARCH 20, 2012 RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.; WITH ACOBA, J., DISSENTING, WITH WHOM DUFFY, J., JOINS OPINION OF THE COURT BY RECKTENWALD, C.J. Orlando Pecpec was charged in the Family Court of the First Circuit with 25 counts of Violation of an Order for Protection in relation to 25 voicemails and text messages he allegedly sent to the complaining witness, his former spouse. At trial, the first 6 counts were supported only by the testimony of the complaining witness. The jury found Pecpec not guilty on ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** these counts. The remaining 19 counts were supported by 19 exhibits containing either audio recordings of the alleged voicemails or photographs of the alleged text messages. The jury found Pecpec guilty on each of these 19 counts, and the family court sentenced Pecpec to a one-year jail term on each count, to run concurrently, with the exception of Count 13 for which the sentence was to run consecutive to the remaining counts.1 Intermediate Court of Appeals affirmed. The State v. Pecpec, No. 30500, 2011 WL 2037679 (Haw. App. May 25, 2011). Pecpec challenges his convictions on Counts 8-15, which refer to 8 voicemails on November 6, 2009; Counts 18-22, which refer to five text messages on November 6, 2009; and Counts 2325, which refer to three text messages on November 7, 2009. Pecpec argues that these convictions were obtained in violation of his right to a unanimous verdict because the jury was not specifically instructed that it was required to unanimously agree to the specific act that supported each count. Although the jury instructions identified each count by the date on which the alleged violation occurred and identified whether the violation was made by way of a voicemail or text message, they did not identify the time of the violation or the exhibit to which each count corresponded. Pecpec argues that, because the jury was not informed which count corresponded with which specific incident, the family court was required to provide 1 The Honorable Edward H. Kubo, Jr. presided. -2- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** the jurors with a specific unanimity instruction. Absent such an instruction, Pecpec argues, the jurors may not have unanimously agreed that Pecpec committed the conduct described in each of the 19 counts. Pecpec also argues that his consecutive sentence on Count 13 violates his constitutional rights to due process, equal protection, and to be free from cruel and unusual punishment because it may have been based on a verdict that was not unanimous. We hold that, under State v. Mundon, 121 Hawai#i 339, 355, 219 P.3d 1126, 1142 (2009), the family court was required to give a specific unanimity instruction in the circumstances of the instant case. However, we hold that the family court s error did not contribute to Pecpec s convictions, because there is no genuine possibility that the jurors could have found Pecpec guilty without unanimously concluding that he committed each of the acts presented in the State s exhibits. 219 P.3d at 1141-42. Cf. id. at 354-55, The jury was presented with 19 exhibits, and convicted Pecpec on 19 counts that corresponded to the dates on which the conduct in those exhibits allegedly occurred. The presentation of the evidence, jury instructions, and arguments of both counsel made clear that there was a one-to-one relationship between counts and exhibits. Thus, there is no reasonable possibility that Pecpec was convicted on less than a unanimous verdict. Accordingly, the family court s error in failing to provide a specific unanimity instruction was harmless. -3- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** However, we hold that the family court abused its discretion in sentencing Pecpec to a consecutive sentence on Count 13. The family court sentenced Pecpec to a consecutive sentence based on the conduct set forth in Exhibit 17. However, the record does not support an inference that the jury found Pecpec guilty on Count 13 based specifically on the conduct memorialized in Exhibit 17, and thus the sentence was improper. Accordingly, we vacate Pecpec s sentence on Count 13 and remand for re-sentencing. We affirm the family court s June 4, 2010 Amended Judgment of Conviction and Sentence in all other respects. I. Background On April 15, 2010, the State charged Pecpec by way of complaint with 25 counts of Violation of an Order for Protection, in violation of Hawai#i Revised Statutes (HRS) § 586-11(a)(1)(A).2 2 The language of each count was identical, HRS § 586-11(a) (Supp. 2009) provides, in relevant part: (a) Whenever an order for protection is granted pursuant to this chapter, a respondent or person to be restrained who knowingly or intentionally violates the order for protection is guilty of a misdemeanor. A person convicted under this subsection shall undergo domestic violence intervention at any available domestic violence program as ordered by the court. The court additionally shall sentence a person convicted under this subsection as follows: (1) For a first conviction for violation of the order for protection: (A) That is in the nature of non-domestic abuse, the person may be sentenced to a jail sentence of forty-eight hours and be fined not more than $150; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine[.] -4- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** except for the date of the alleged violation: On or about [date], in the City and County of Honolulu, State of Hawaii, [Pecpec] did intentionally or knowingly violate the Order of Protection issued in FC-DA No. 08-1-1887, filed on the 15th day of September, 2008, by the Honorable Linda S. Martell, Judge of the [family court], State of Hawai#i, pursuant to Chapter 586 of the [HRS], thereby committing the offense of Violation of an Order for Protection in violation of Section 586-5.5 [3] and Section 586-11(a)(1)(A) of the [HRS]. Counts 1 through 6 alleged violations on October 19, 2009. Count 7 alleged a violation on October 22, 2009. Counts 8 through 15 and 18 through 22 alleged violations on November 6, 2009. Counts 16 and 22 through 25 alleged violations on November 7, 2009. Finally, Count 17 alleged a violation on November 8, 2009.4 A. Trial The complaining witness ( CW ) testified that she and Pecpec were married from 1997 to 2007 and had five children together. CW testified that, on September 15, 2008, she obtained an Order for Protection against Pecpec, which was effective until 3 HRS § 586-5.5(a) (Supp. 2001) provides, in relevant part: If, after hearing all relevant evidence, the court finds that the respondent has failed to show cause why the order should not be continued and that a protective order is necessary to prevent domestic abuse or a recurrence of abuse, the court may order that a protective order be issued for a further fixed reasonable period as the court deems appropriate. 4 Although nothing in the language of each count distinguished the counts involving the same date from one another, the caption of the complaint correlated each count with a different police report number. The corresponding police reports, which are contained in the record on appeal, state the date and time of each alleged violation and specify whether each violation occurred by way of voicemail or text message. However, it does not appear that this correlation between the police reports and the charged counts was presented to the jury, and the police reports were not admitted into evidence. -5- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** September 2013. A redacted copy of the September 15, 2008 Order for Protection was admitted into evidence.5 The Order prohibited Pecpec from, inter alia, contacting CW by phone or text message, but allowed for LIMITED contact . . . for the purpose of attending courtroom proceedings and service of legal documents by mail or through a process server. CW testified that Pecpec left her six voicemails on her office telephone on October 19, 2009. CW could not remember the exact times of the voicemails, but stated that they were left from 10:00 in the morning, on during business hours. CW could not remember the exact content of the voicemails but testified that the voicemails discussed various, different things[,] such as speculating that she was not answering her work phone because she had been out late and that their oldest son really wasn t his and that s probably why his son wanted to change his last name. CW recorded the voicemails but did not provide the recordings to the prosecutor because she wrote down whatever was said on the message. CW testified that she also received voicemails from Pecpec on October 22, November 6, November 7 and November 8, 2009. CW saved these voicemails, recorded them, and gave the recordings to the prosecutor s office. Redacted versions of the recordings were admitted into evidence over defense counsel s 5 The redactions removed, inter alia, language referencing domestic abuse by Pecpec against CW. -6- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** objection as State s Exhibits 13 through 23. CW testified that Exhibit 23 contained a voicemail she received on October 22, 2009. CW testified that Exhibits 15 through 22 contained voicemails she received on November 6, 2009 as follows: Exhibit 15 was received after 1:00 p.m.; Exhibit 16 was received at 1:25 p.m.; Exhibit 17 was received at 1:28 p.m.; Exhibit 18 was received at 1:46 p.m.; Exhibit 19 was received at 1:50 p.m.; Exhibit 20 was received at 1:51 p.m.; Exhibit 21 was received at 2:05 p.m.; and Exhibit 22 was received at 3:40 p.m. CW testified that Exhibit 14 contained a voicemail she received on November 7, 2009 at about 2:15 p.m. Exhibit 13 contained a voicemail she received on November 8, 2009 at about 5:00 p.m. The recordings were published to the jury and transcribed as follows6: [Exhibit 23, October 22, 2009:] (Indiscernible). But you know, [CW], that s what you gotta (indiscernible), okay. (Indiscernible) fucking have any love for me or whatsoever in front of the kids, because you never did. When I think of the -- fucking our past (indiscernible), when I think about fucking when you gave me a special gift, you probably wouldn t even remember what you gave me; but I still do (indiscernible). . . . . [Exhibit 22, November 6, 2009:] What? You not going to answer the phone now? Huh? Don t worry, I said. The (indiscernible) is getting clearer and clearer and clearer. That s why you spend so much time at Ko Olina with your time-shares with (indiscernible) of people. That s why you spend so much time at Ala Moana Hotel with the bunch of people that you fucking working with, okay. 6 The State introduced each voicemail by stating the exhibit number and the alleged date of the voicemail. The exhibit number and the date provided by the State appear in brackets in the passage quoted above. Based on CW s testimony regarding the exhibit numbers, supra, it appears the voicemails for November 6, 2009 were not published to the jury in the order in which they were allegedly received. -7- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** Oh, if I were you, I would have your friend cancel the fucking reservation November 17th, that whole week, (indiscernible). . . . . [Exhibit 21, November 6, 2009:] You know, I don t know if you remember about when you had asked me about how I wen ask about your job. So what do you think about your new job? . . . . [Exhibit 20, November 6, 2009:] July 26, July 28, (indiscernible) July 24, or July 23rd. (Indiscernible) fuck you. . . . . [Exhibit 19, November 6, 2009:] You know, bottom line for me (indiscernible), yeah, just because I call you up, it doesn t necessarily mean I wen smoke, okay. I remember this, now. I keep telling you guys that when (indiscernible) did something to (indiscernible) and his wife, he wasn t high. I keep telling you (indiscernible), the sisters, and it was (indiscernible), okay. (Indiscernible). That s why to me (indiscernible). You already know what she did in the past about this relationship, so -- everybody can see that already, everybody except the fucking guys that, you know, kiss ass for the pussy. Because why? The fuckers no (indiscernible). . . . . [Exhibit 18, November 6, 2009:] (Indiscernible), fucking (indiscernible), okay. (Indiscernible) make me go to the Hawaiian National Bank? Because that s where (indiscernible). (Indiscernible.) . . . . [Exhibit 17, November 6, 2009:] (Indiscernible). (Indiscernible) fucking (indiscernible). (Indiscernible) because all those fuckers are sorry asses, too, okay. But they cannot afford to get divorced from their wife because the wife will take everything, okay. (Indiscernible) going on, [CW]. I told you, when you sent me to jail, you only made me stronger. Stronger by what? Meeting the people that I needed to meet, okay. That s why, I go in again, and if I stay in two years, more fucking strong I come, okay. On the outside I m already solid. Inside, I even more solid, okay. (Indiscernible) the kind of thing that s comes to -- to me. (Indiscernible) I hope you understand that, okay. Now, the police help you out. Why? Because (indiscernible) helping you. (Indiscernible) helping you because why (indiscernible), okay, in Alewa Heights, all those things, okay, and all those people have contact. But you know what? Like I said, sometimes (indiscernible) really help because there s a price to pay for all those kids. (Indiscernible). Why? They have no fucking (indiscernible). . . . . -8- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** [Exhibit 16, November 6, 2009:] Like I said, [CW], I m not (indiscernible) to kill you. I m not doing nothing wrong to you. I brought up (indiscernible) name. (Indiscernible) ways to hurt you. No, no, no, no. (Indiscernible) saying that, okay. But all I m saying is, that, just because I talk the way I talk doesn t mean I did what you accusing me of for the fucking past six, seven years, okay. But maybe it was you that was smoking; that s why you had to make yourself feel good, okay. But like I said, [CW], you will continue to deny me. Why? Because you cannot remember all the lies you have said to me. (Indiscernible). Oh, this is what I wanted to say: Like the pharmaceutical company, with the insurance, with (indiscernible), and with your doctors and you as a patient, it is the way they work around. And that s why these people all hang out and drink together. Now, the bank, construction workers, homeowners, the subcontractors and everything, that s why they all party together. Why? Because that s the way they going get their money. Or else there wouldn t be any (indiscernible) for anybody. You see? That s why you been doing (indiscernible). (Indiscernible) government s money, just to fucking (indiscernible) and they find themself in the bedroom fucking, making people s life miserable. Like I said, (indiscernible). I m just showing her family and Randall, too -- because Randall s a (indiscernible), too, okay. I hope you see that. (Indiscernible). And if they get girlfriend, I say, Sorry, but you cannot come around; I m not going to destroy your relationship with your other -- your girlfriend. I don t want to be part of that. My friends already wen use me to do -- destroy mine, okay. I m not that kind of person (indiscernible). If you want destroy your relationship with your girlfriend, you do it on your own. Don t do (indiscernible) on my time. . . . . [Exhibit 15, November 6, 2009:] (Indiscernible). Remember you said that you wanted to purchase? Yeah? (Indiscernible) [CW], because of you, using my money, okay. Since when you (indiscernible) concerned? You re (indiscernible) gone for two days, okay. Go hide in Ala Moana Hotel. Go hide in the apartment (indiscernible). (Indiscernible) you re a sick person, I told you. I m going to let you know, I m going to do one other -- I m going to contest the TRO again, okay. I m also going to contest the Divorce Decree again, okay. And this time I m going to let the kids talk in court. Those are the kids (indiscernible) subpoenaed. I m going to subpoena everybody that knows what s going on already, okay. I m also going to bring out about the bank statements and our deposits and all those things. (Indiscernible) judge wen ask about what I do, what I did, okay. I didn t want to talk -9- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** about it because it involves you; but you re forcing me to do it, okay. (Indiscernible). (Indiscernible) aren t going to help you, okay. At least (indiscernible) support, [CW]. This is something that you always talked about to me. Now that I have it, you don t want it? Why? Why? Because you fucked up. Fuck that, you know. Fuck it. If this is the way you re going to raise the kids, don t involve me with them, okay. Why don t you go find a father that you (indiscernible) with them. . . . . [Exhibit 14, November 7, 2009:] I m sorry to say this, but you turned off your fucking phone on me, on nobody else, yeah. (Indiscernible), okay. . . . . [Exhibit 13, November 8, 2009:] (Indiscernible)? (Indiscernible), yeah, when you were fucking (indiscernible). (Indiscernible). (Internal quotation marks omitted). CW testified that she also received text messages from Pecpec on November 6 and November 7, 2009. CW saved these messages and forwarded them to another cell phone with a larger screen, and then took digital photographs of the messages and gave the photographs to the prosecutor s office. The photographs were admitted into evidence over defense counsel s objection as State s Exhibits 5 through 12. CW testified that Exhibits 5 through 9 contained text messages she received on November 6, 2009 as follows: Exhibit 5 was received at approximately 9:40 p.m.; Exhibit 6 was received at 9:53 p.m.; Exhibit 7 was received at 10:21 p.m.; Exhibit 8 was received at 10:33 p.m.; and Exhibit and 9 was received at 10:47 p.m. CW testified that Exhibits 10 through 12 contained text messages she received on November 7, 2009 as follows: Exhibit 10 was received at 3:36 a.m.; Exhibit 11 was received at 3:47 a.m.; and Exhibit 12 was received at 5:42 -10- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** a.m. The photographs of the text messages were published to the jury. The text messages read as follows7: [Exhibit 5, November 6, 2009] FWD: No need look for me i got u on G P S i also [Exhibit 6, November 6, 2009] FWD: Must be nice to see men or lesbians jump to help u with ur problem using the pussy i ate n fuck. Hard to replace me in the way i ate n fuck u [Exhibit 7, November 6, 2009] FWD: How s the Shack n the small men mentality cops. I hope the balls they have can give me a challenge just ask Maribel if i m scared [Exhibit 8, November 6, 2009] FWD: I been doing my homework. The guy s u have can t protect themselves bcuz i know who they r. N cars they drive n license plate how s that. I m fm. 94 block [Exhibit 9, November 6, 2009] FWD: U can alway s at the bus stop, running, or riding a bike, or riding in a car tinted next to u. Watching u give head that s nuts. [Exhibit 10, November 7, 2009] FWD: Same scenerio every week not home to care for the kids yet she forces them to go home so she can get eaten n fuck all night. That s y u did I U D n not get preg [Exhibit 11, November 7, 2009] FWD: So silly u think u can handle me but cannot handle me fucking u. 3 am not home doesn t look good to C P S [Exhibit 12, November 7, 2009] FWD: I told u i hope u r not helping to destroy a family by staying out all night with ur friends bcuz some is not good in breaking up CW testified that she did not give Pecpec permission to contact her by phone or text message on any of the alleged dates. CW testified that the voicemails she received from Pecpec on October 19 and 22, 2009 made her feel [n]ervous. In response to these calls, CW called Pecpec because she was concerned that the voicemails indicated Pecpec knew her whereabouts. 7 CW The prosecution marked each exhibit with the date CW allegedly received the text message. That date appears in brackets in the passage quoted above. -11- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** testified that the conversations mostly involved Pecpec accusing [her] of something, and that she would just listen sometimes and try to be calm if he sounded agitated. CW testified that she told Pecpec to stop calling her because this is a violation. She testified that she contacted Pecpec because [she] was scared and [] wanted to say, you know, What is it that you want? CW testified that the voicemails and text messages she received from Pecpec on November 6, November 7, and November 8, 2009 made her feel [n]ervous and scared. CW again contacted Pecpec during this time frame because some of the texts entailed GPS or other indications that Pecpec knew her whereabouts. CW testified that she contacted Pecpec to have him stop calling [her] and to get an idea of where he was. On cross-examination, CW testified that Pecpec filed a motion to dissolve the Order for Protection on May 29, 2009, and that a hearing on the motion was scheduled for October 19, 2009 at 8:30 a.m. Pecpec did not appear at the hearing. CW could not recall whether Pecpec called her on October 19, 2009 to ask about the hearing, but stated that she would not have included those phone calls in her complaint because it could have just been regarding the court. Defense counsel asked CW regarding the content of the voicemails she received on October 19, 2009 that were the subject -12- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** of her complaint. CW stated that she wrote the content of the voicemails on the statement she made to the police. However, upon being shown her statement, CW testified that she did not write the content of the voicemails on her statement. CW also testified that, around November 6, 2009, she had a conversation with one of her sons ( AP ) in which she threatened to call the police because Pecpec was with the children even though he was prohibited from having contact with them. On redirect, CW testified that she did not report this incident to the police because she didn t want the kids to see their dad getting arrested, and they came home[.] AP, who is Pecpec and CW s son, testified as a witness for the defense. AP testified that, on November 6, 2009, he was at his grandparents house when CW called. Pecpec was also at the house. CW found out that Pecpec then left the house, but CW thought Pecpec was still there and told AP to come home. AP told CW that he did not want to go home, and CW told AP that she would call the police if he did not come home. AP testified that he wanted to stay at his grandparents house because he wanted to see his dad. AP did not leave his grandparents house and instead stayed there for several hours. Pecpec eventually returned and talked with CW on the phone. Pecpec testified in his own defense. With regard to October 19, 2009, Pecpec testified that he was late for the -13- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** hearing on his motion to dissolve the Order for Protection and therefore missed the hearing. Pecpec stated that he called CW later on October 19, 2009 to discuss the hearing and to explain that he had missed the hearing because he was suffering from a kidney stone the previous night. Pecpec testified that the call lasted approximately 10 to 15 minutes and was solely concerned with the hearing. After that call, he received a call from CW but could not answer it because he was on the phone with someone else. He then left CW three voicemails on October 19, 2009 at 10:14 a.m., 10:24 a.m., and 10:26 a.m., because she had asked him to call her back. court hearing. All three of the voicemails concerned the Pecpec testified that CW called him back after these voicemails. Pecpec denied calling CW on October 19, 2009 at 12:08 p.m. or 12:20 p.m. and stated that he was on the bus at that time.8 Pecpec also denied calling CW on October 22, 2009. Pecpec testified regarding an incident at his parents house on November 6, 2009. Pecpec s children came to the house and, after he said hi to them, he left. call from his son, AP, who was crying. He then received a AP told Pecpec that CW was going to call the police if the children didn t go home. At approximately 1:00 p.m., while still on the phone with AP, Pecpec 8 As noted, CW did not testify to the exact times of the voicemails she received on October 19, 2009. See supra, p.6. However, the times Pecpec referred to in his testimony correspond with the times listed in the police reports concerning the October 19, 2009 violations. See supra, n.4. -14- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** received a call from CW, who asked him to tell the children to go home. Pecpec testified that he then went back and forth between calls from CW and AP until he got back to the house. After arriving at the house, CW kept calling, leaving [] messages to call her back. With regard to the November 6, 2009 voicemails, Pecpec testified that he might have left CW a voicemail at 1:16 p.m., asking her to [h]ang on because he was busy. When asked about the voicemail contained in Exhibit 22, which defense counsel identified as allegedly being left on November 6, 2009 at 1:16 p.m., Pecpec testified that he did not leave that voicemail on November 6, 2009, but maybe a different time. 9 Pecpec testified that he called CW at 1:25 p.m. to ask her to let the children stay at his parents house, but she refused. When asked about the voicemail contained in Exhibit 21, which defense counsel identified as allegedly being left on November 6, 2009 at 1:25 p.m., Pecpec testified that the voicemail contained in Exhibit 21 never happened[.] Pecpec also testified that the voicemails contained in Exhibits 19, 18, 17, 16 and 15 were not 9 During Pecpec s testimony, defense counsel appeared to identify the conduct described in Exhibit 22 as relating to 1:16 p.m.; Exhibit 21 as relating to 1:25 p.m.; Exhibit 19 as relating to 1:46 p.m.; Exhibit 18 as relating to 1:50 p.m.; Exhibit 17 as relating to 1:51 p.m.; Exhibit 16 as relating to 2:05 p.m.; and Exhibit 15 as relating to 3:40 p.m. However, this is inconsistent with CW s testimony regarding the timing of the voicemails. -15- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** made on November 6, 2009.10 Pecpec talked with CW at approximately 9:30 p.m. on November 6, 2009 after his children returned home. testified that CW stated, You know what? Fuck you. Pecpec More better I look for you myself and shoot you, you fucker. Pecpec testified that he did not call CW on November 7, 2009 at 2:15 p.m., and did not have a recollection of the voicemail contained in Exhibit 14. Pecpec testified that he did not call CW on November 8, 2009 at 5:15 p.m., and that the voicemail contained in Exhibit 13 was made at a previous time. Pecpec also testified that he did not leave the voicemail contained in Exhibit 23 on October 22, 2009, but rather at a previous time. Pecpec did not state when these voicemails were left, but did not testify that he left these voicemails prior to the September 15, 2008 effective date for the Order for Protection. With regard to the text messages on November 6, 2009, Pecpec testified that he remembered writing the message CW allegedly received at 9:40 p.m., but did not remember sending it. The message was written in response to CW s threatening Pecpec over the phone. Fuck you. CW responded to the text message by writing, Pecpec also remembered writing the message CW 10 Defense counsel did not question Pecpec regarding the voicemail contained in Exhibit 20. -16- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** allegedly received at 9:53 p.m., but did not remember sending it. Pecpec testified that he did not send CW text messages on November 6, 2009 at 10:21 p.m., 10:33 p.m., or 10:47 p.m., and that the text messages contained in Exhibits 7 through 9 were made at a different time. With regard to the text messages on November 7, 2009, Pecpec testified that the text message contained in Exhibit 10 was not made on November 7, 2009, but was made the following week. Pecpec also testified that the text messages contained in Exhibits 11 and 12 were not made on November 7, 2009. On cross-examination, Pecpec testified that he received the Order for Protection and knew that he was prohibited from contacting or threatening CW. Pecpec confirmed that he left CW the voicemails that had been played for the jury. CW was called as a rebuttal witness for the State. Regarding the incident involving AP, CW testified that she did not tell Pecpec, More better I look for you myself and shoot you myself[.] During the settling of jury instructions, neither Pecpec nor the State requested a specific unanimity instruction.11 The family court instructed the jury that [a] 11 Hawai#i Pattern Jury Instructions--Criminal (HAWJIC) provides the following generic unanimity instruction: The law allows the introduction of evidence for (continued...) -17- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** verdict must represent the considered judgment of each juror, and in order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous. (Emphasis added). The family court also instructed the jury with regard to the elements of the offense. With regard to Counts 1 through 17, the family court instructed the jury 17 separate times, as follows, changing only the count number and the date: As to Count [count number] of the Complaint, [Pecpec] is charged with the offense of Violation of An Order for Protection. A person commits the offense of Violation of An Order for Protection if he intentionally or knowingly engages in conduct which is prohibited by an Order for Protection issued by a Judge of the Family Court that was then in effect. There are four material elements of the offense of Violation of An Order for Protection, each of which the prosecution must prove beyond a reasonable doubt. These four elements are: 1. That on or about [date] in the City and County of Honolulu, State of Hawai#i an Order for Protection issued by a Judge of the Family Court pursuant to [c]hapter 586 of the [HRS], was in effect, prohibiting [Pecpec] from engaging in certain conduct, namely contacting or threatening [CW], by either telephone or recorded message; and 2. That on or about [date], in the City and 11 (...continued) the purpose of showing that there is more than one [act][omission][item] 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][the same omission][possession of the same item] has been proved beyond a reasonable doubt. HAWJIC Instruction 8.02 (brackets in original). Although the HAWJIC refers to this instruction as a generic unanimity instruction, this type of instruction is referred to as a specific unanimity instruction in our caselaw. See, e.g., State v. Arceo, 84 Hawai#i 1, 33, 928 P.2d 843, 875 (1996) (identifying a specific unanimity instruction as one that advises the jury that all twelve of its members must agree that the same underlying criminal conduct has been proved beyond a reasonable doubt ). -18- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** County of Honolulu, State of Hawai#i, [Pecpec] intentionally or knowingly engaged in certain conduct, namely contacting or threatening [CW] by either telephone or recorded message, which was conduct prohibited by the Order for Protection; and 3. That [Pecpec] knew, at the time, that such conduct was prohibited by the Order for Protection; and 4. That [Pecpec] was given notice of the Order for Protection prior to engaging in such conduct by having been personally served with the Order for Protection. The prosecution must prove beyond a reasonable doubt that [Pecpec] acted intentionally or knowingly as to each element of the offense. With regard to Counts 18 through 25, the family court provided the same instruction as for the previous counts, but replaced the phrase by either telephone or recorded message with the phrase by text message. The family court repeated this instruction 8 separate times, changing the count number and date. In instructing the jury regarding the form of its verdict, the family court repeated the following instruction 25 times, changing the count number with each repetition: In Count [count number] of the Complaint, as to Defendant ORLANDO PECPEC, you may bring in either one of the following verdicts: 1. Not guilty; or 2. Guilty as charged of Violation of An Order for Protection. Your verdict must be unanimous. (Emphasis added). In closing argument, the State argued that CW s testimony was more credible than that of Pecpec regarding the dates and times of the alleged voicemails and text messages. The State also connected the charged counts to the dates and exhibits -19- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** as follows: Now, you have before you 25 counts and numerous dates of incidents. Let s go over it quickly to try to break it down and make it a little easier. Okay. So we re talking about 25 counts of Violation of an Order for Protection. We know that they fall into two categories -- voice mails and text messages. The voice mails would be your first 17 counts, Counts [1] to [17]. The text messages would be your next eight counts, Counts [18] to [25]. Now, let s look first at the voice mails. The voice mails are grouped in terms of the dates of incident. Counts [1] through [6] are from October 19, 2009; Count [7] is from October 22; Counts [8] to [15] are November 6; Count [16] from November 7; and Count [17] is from November 8. Now, you listened to voice mails. These voice mails are also associated with these dates. Exhibit 23 is the voice mail from October 22; Exhibit[s] 15 to 22 are from November 6; Exhibit 14 is from November 7; Exhibit 13 is from November 8. Switching now to the text messages. Counts [18] to [25], they are also grouped in terms of the dates of incident. Counts [18] to [22] are from November 6; Counts [23] to [25] are from November 7. For each of these text messages there are exhibits. Exhibits 5 through 9 are the text messages from November 6; and Exhibits 10 to 12 are the text messages from November 7. Defense counsel argued that the voicemails on October 19, 2009 concerned the hearing to dissolve the Order for Protection. Defense counsel also argued that CW was not credible, and that CW continued to contact Pecpec between November 6 and November 8, 2009. Defense counsel also pointed out that CW did not include the date and time stamp on her recordings of the voicemails, and that Pecpec testified that the voicemails were from another time. In rebuttal closing, the State argued: Ladies and gentlemen, the Order for Protection prohibits him, prohibits [Pecpec] from contacting [CW], threatening her. State has shown beyond a reasonable doubt that he did just that 25 times. -20- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** (Emphasis added). The jury found Pecpec not guilty on Counts 1 through 6, i.e., the voicemails on October 19, 2009. The jury found Pecpec guilty on the remaining 19 counts. At sentencing, the State recommended that Pecpec be sentenced to a one-year term of incarceration on each count, with four of the sentences to run concurrently. The State did not identify any specific counts for which concurrent sentencing should be imposed, but stated that it was looking at a sentence of five years total[.] Defense counsel requested only that Pecpec be given credit for time served. The family court then inquired regarding the count to which Exhibit 17 related: THE COURT: Okay. Counsel[ for the State], Exhibit 17, November 6, 2009, turning your attention to the transcripts, is that Count [10]? [STATE]: Exhibit 17 is Count [13]. THE COURT: Exhibit 17 is -- is Count [13]? [STATE]: Yes, your Honor. THE COURT: Okay. Do you agree, counsel for Defense? [DEFENSE]: I m sorry. I didn t bring my complete file. THE COURT: Okay. No problem. Do you wish to have your client address the [c]ourt at this point? Pecpec allocuted, and the family court subsequently reviewed Pecpec s history of violence against CW, his history of drug use, his past convictions for harassment and violations of an order for protection, and the number of convictions in this case. The family court sentenced Pecpec to a one-year term of incarceration on each count, to run concurrently, with the -21- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** exception of Count 13 for which the sentence was to run consecutive to the remaining counts. As to the sentence on Count 13, the court explained: [T]he [c]ourt takes particular note that [Pecpec] in this conversation, which is Count [13], which I believe is Exhibit 17, which was recorded on 11 -- November 6, 2009, [Pecpec] blames the victim for sending him to jail and that she s -- and that because he went to jail because of her it made him stronger. And then he goes on to indicate to her that there s a price to pay for all these things, which the [c]ourt interprets in its context to be a threat to the victim s life. The [c]ourt takes this serious [sic]. The [c]ourt finds in Count [13] that the circumstances of this case, as well as the facts and circumstances as the [c]ourt has already indicated [with regard to Pecpec s history of violence against CW and his violations of other protective orders], warrants that [Pecpec] be sentenced in Count [13] to one year consecutive to the other counts. On May 4, 2010, the family court issued a Judgment of Conviction and Sentence.12 May 13, 2010. Pecpec filed his Notice of Appeal on On June 4, 2010, the family court issued its Amended Judgment of Conviction and Sentence, convicting Pecpec on counts 7 through 25 and sentencing him to a one-year term of incarceration on each count, to run concurrently, with the exception of Count 13 for which the sentence was to run consecutive to the remaining counts. B. Appeal In his opening brief, Pecpec argued that the family court should have given the jury a specific unanimity instruction because [t]he State presented evidence of more than one act 12 This judgment did not state whether Pecpec was convicted of any charges. -22- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** which could support conviction in each count of the complaint, and its election was not clear on the record. (Citing Arceo, 84 Hawai#i at 32-33, 928 P.2d at 874-75 (1996)) (holding that, where the State presents evidence of multiple instances of misconduct but charges only one, the State must elect which act underlies the charge or the trial court must issue a specific unanimity instruction). Pecpec contended that the verdicts were not supported by unanimous agreement upon a single act constituting the offense in each count[,] and accordingly violated his right to a unanimous verdict under the United States and Hawai#i constitutions. Pecpec acknowledged that a Powerpoint presentation used during the State s closing argument contained slides with [sic] connect Counts of the Complaint to particular exhibits identified by date and number. However, Pecpec argued that the Powerpoint slides should not be construed as an election because they are not clearly referenced or entered in the record[.] 13 Pecpec also challenged his consecutive term sentence on Count 13 on the ground that the jury verdict was not unanimous. Pecpec stated that the family court unilaterally assigned to this particular count[] the conduct portrayed in State s Exhibit 13 The State did not address the Powerpoint slides, and did not argue that it elected the specific exhibit that supported each count. Moreover, as noted by Pecpec, the Powerpoint slides are not contained in the record on appeal. Accordingly, we do not consider them. -23- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** 17. In its answering brief, the State asserted that it introduced 19 separately identified exhibits that memorialized 19 distinct contacts [Pecpec] made with [CW] as the proof he committed the 19 different offenses charged in Counts 7 through 25. Therefore, the State argued, Arceo was inapplicable because that case dealt with multiple acts underlying a single charged offense, rather than an equal number of acts and counts. The State also contended that any uncertainty with regard to the unanimity of the jury s guilty verdicts for the [voicemail] counts is erased by Pecpec s admission on cross that he left the voicemails that were played in court. As to the consecutive term sentence on Count 13, the State argued that, because the jury unanimously found Pecpec guilty of the violation memorialized in Exhibit 17, and because Pecpec admitted to leaving the voicemail contained in Exhibit 17, the imposition of a consecutive term sentence based on that exhibit did not constitute an abuse of discretion. Pecpec reiterated in his reply brief, that each [count] could [have been] supported by more than one of the acts alleged and that the State did not establish or even contend that the exhibits of November 6, 2008 are connected to any specific count in the complaint. Pecpec further argued that it is insufficient to present a number of exhibits to prove the same -24- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** amount of counts, expecting that the jury attributes the exhibits, in chronological or numerical order, to the counts in sequence. In a summary disposition order signed by Judges Nakamura and Ginoza, a majority of the Intermediate Court of Appeals (ICA) held that the family court did not err by not providing a specific unanimity instruction. 2037679, at *1. Pecpec, 2011 WL Specifically, the majority concluded that: The jury was afforded sufficient guidance to know what it had to conclude in order to convict on the multiple counts asserted against Pecpec, and there is no genuine possibility of jury confusion given the record in this case. The prosecution presented evidence and asserted throughout this case that Pecpec committed a total of twenty-five acts (voice mails or texts) which were the basis for the twenty-five counts of violating a Protective Order that prohibited Pecpec from contacting the complainant, his ex-wife. Id. The majority also noted that Pecpec admitted leaving the voicemails that were played in court; the family court instructed the jury in various ways that its verdict must be unanimous; and there was a one-to-one relationship between the number of counts and the number of exhibits, which distinguished this case from Arceo. Id. at *2-5. Finally, the majority noted that for Counts 7-25, the jury convicted on all the counts for dates on which multiple counts were charged. For this to occur, the jury must have unanimously found that Pecpec engaged in each of the prohibited contacts reflected in the exhibits. -25- Id. at ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** *5. Accordingly, the ICA held that Pecpec was not entitled to relief.14 Id. The majority also rejected Pecpec s arguments concerning the consecutive term sentence on Count 13, noting that the family court conferred with both counsel before relying on Exhibit 17, and the voicemail contained in Exhibit 17 was an act by Pecpec upon which the jury unanimously agreed to convict. Id. Accordingly, the majority affirmed the family court s judgment. Id. Judge Reifurth concurred in part and dissented in part.15 Id. at *5-6. The dissent agreed with the majority that no specific unanimity instruction was necessary for counts alleging violations on dates for which there was only one voicemail or text message, i.e., Count 7 (a voicemail on October 22, 2000), Count 16 (a voicemail on November 7, 2009), and Count 17 (a voicemail on November 8, 2009). Id. at *7. However, the dissent would have required a specific unanimity instruction for dates where multiple violations of the same type were charged, i.e., Counts 8-15 (voicemails on November 6, 2009), Counts 18-22 (text messages on November 6, 2009), and Counts 23-25 (text 14 Despite this holding, the majority noted that, had the State specified the time or content of the voicemails and text messages for each count of the complaint, it would have eliminated any issues regarding unanimity. Id. at *5. 15 For ease of reference, we refer to the concurring and dissenting opinion as the dissent. -26- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** messages on November 7, 2009). Id. The dissent expressed concern that some of the jurors may have believed that a single act supported multiple counts of the complaint. Id. The dissent illustrated this concept as follows: For example, Juror 1 might conclude that Exhibit 15 (voice mail received November 6, 2009 at 1:00 p.m.) supports conviction on Count 8 and that Exhibit 16 (voice mail received November 6, 2009 at 1:25 p.m.) supports conviction on Count 9, while Juror 2 does not believe that Exhibit 15 supports a conviction at all, but that Exhibit 16 supports a conviction on both Counts 8 and 9. Under those circumstances, [Pecpec] is denied his constitutional right to a unanimous verdict on Count 8 under article I, sections 5 and 14 of the Hawai#i Constitution. Id. (footnotes omitted). Accordingly, the dissent would have vacated the family court s judgment as to the convictions on Counts 8-15 and 18-25 and remanded for further proceedings. Id. at *9. The ICA filed its judgment affirming the family court s Amended Judgment of Conviction and Sentence on June 7, 2011. Pecpec timely filed his application on July 29, 2011, in which he raises the following questions: Did the [ICA] err by violating [Pecpec s] right to unanimous jury verdict guaranteed under Amendment VI to the U.S. Constitution and Art. I, §14 of the Constitution of the State of Hawaii, in affirming [Pecpec s] convictions where no Specific Unanimity Instruction was given to the jury and the State did not make an election of counts? Did the ICA err in violating [Pecpec s] right to due process Amendment VI to the U.S. Constitution and Art. I, §14 of the Constitution of the State of Hawai#i, Equal Protection Under the Law Amendments V and XIV to the U.S. Constitution and Art. I, §§5 and 14 of the State of Hawaii Constitution and cruel and unusual punishment Amendment VIII th [sic] the U.S. Constitution and Art. I, §12 of the Constitution of -27- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** the State of Hawaii by affirming consecutive sentence predicated on verdicts which were not unanimous? (Internal brackets omitted). The State did not file a response. II. A. Standards of Review Omission of Jury Instructions When jury instructions or the omission thereof are 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. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. Arceo, 84 Hawai#i at 11, 928 P.2d at 853 (internal quotation marks, brackets, and citations omitted); see also State v. Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984 (2006) ( [O]nce 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. ). B. Sentencing A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant s contentions. And, generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a -28- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** party litigant. State v. Rauch, 94 Hawai#i 315, 322, 13 P.3d 324, 331 (2000) (internal quotation marks, brackets, and citations omitted). III. Discussion Pecpec argues that his convictions on Counts 8-15, 18-22 and 23-25 were obtained in violation of his right to a unanimous verdict because the State did not elect which exhibits corresponded to which counts, and the family court did not give the jury a specific unanimity instruction. Pecpec also argues that his consecutive sentence on Count 13 violates his constitutional rights because it was impossible to know whether Exhibit 17 corresponded to Count 13. As set forth below, this court held in Mundon that a specific unanimity instruction is required where multiple counts are supported by the same number of acts, but the jury is not informed as to which act corresponds with each count. Hawai#i at 354-55, 219 P.3d at 1141-42. The facts in Mundon are materially similar to those in the instant case. 219 P.3d at 1141. 121 See id. at 354, Accordingly, the family court should have given a specific unanimity instruction, and its failure to do so was error. See id. at 354-55, 219 P.3d at 1141-42. However, this error was harmless beyond a reasonable doubt because there is no genuine possibility that different jurors relied on different acts to support Pecpec s convictions. -29- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** Cf. id. As discussed in detail infra, the jury was presented with 19 exhibits, and convicted Pecpec on 19 counts that corresponded to the dates on which the conduct in those exhibits allegedly occurred. The presentation of the evidence, jury instructions, and arguments of both counsel made clear that there was a one-to-one relationship between counts and exhibits. Thus, there is no reasonable possibility that Pecpec was convicted on less than a unanimous verdict. Nevertheless, we conclude that the family court abused its discretion in sentencing Pecpec to a consecutive sentence on Count 13, because the record does not reflect that the jury found Pecpec guilty on that count based specifically on the conduct memorialized in Exhibit 17. A. Although a specific unanimity instruction was required in the instant case, the family court s failure to give such an instruction was harmless beyond a reasonable doubt This court has stated that the right of an accused to a unanimous jury verdict is guaranteed by the sixth amendment to the United States Constitution16 and article I, sections 5 and 16 The sixth amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -30- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** 1417 of the Hawai#i Constitution. P.2d at 872. Arceo, 84 Hawai#i at 30, 928 In Arceo, this court addressed the right to a unanimous jury verdict, where a single count is supported by multiple acts. Id. at 32-33, 928 P.2d at 874-75. There, the defendant was charged with one count of sexual assault in the third degree (Count 1) and one count of sexual assault in the first degree (Count 2). Id. at 2-3, 928 P.2d at 844-45. At trial, the complaining witness testified to multiple acts of sexual contact in support of Count 1, and multiple acts of sexual penetration in support of Count 2. Id. at 3, 928 P.2d at 845. The jury found the defendant guilty on both counts. Id. at 10, 17 Article 1, section 5 of the Hawai#i Constitution provides: No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. Article 1, section 14 of the Hawai#i Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused, provided that the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim s physician, psychologist, counselor or licensed mental health professional; to have compulsory process for obtaining witnesses in the accused s favor; and to have the assistance of counsel for the accused s defense. Juries, where the crime charged is serious, shall consist of twelve persons. The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. -31- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** 928 P.2d at 852. On appeal, the defendant argued that the trial court should have required the prosecution to elect the specific acts it was relying on in seeking convictions, or should have given the jury a specific unanimity instruction as to each count. at 3, 928 P.2d at 845. Id. This court agreed and held that: when separate and distinct culpable acts are subsumed within a single count charging a sexual assault any one of which could support a conviction thereunder and the defendant is ultimately convicted by a jury of the charged offense, the defendant s constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the conduct element of the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt. Id. at 32-33, 928 P.2d at 874-75 (emphasis added). Arceo is distinguishable from the instant case, because the holding was dependent on there being separate and distinct culpable acts [] subsumed within a single count[.] Id. In that circumstance, there is a genuine possibility that the jurors may not unanimously agree that the defendant committed the same act for each count. Id. (citation omitted). For instance, given two acts underlying a single count, some jurors may believe that the defendant engaged in one act but not the other, while other jurors may believe the opposite. In such a situation, the jury s verdict would not be unanimous as to either alleged act. -32- In ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** contrast, in the instant case, the State did not present evidence of multiple acts that could support conviction under each count. To the contrary, the 19 counts on which Pecpec was found guilty were supported at trial by 19 exhibits, with each exhibit reflecting a single act. Accordingly, this case is more analogous to Mundon, where the defendant was charged with two counts of terroristic threatening in the first degree (TT1) based on two distinct acts, but the jury found him guilty on only one count. 354, 219 P.3d at 1141. 121 Hawai#i at There, this court noted that a unanimity instruction would not have been required under Arceo, but nevertheless recognized that the jury should be given a specific unanimity instruction under additional circumstances. 353, 219 P.3d at 1140. Id. at This court stated its holding as follows: Because the jury: (1) was not given a specific unanimity instruction with respect to the offense of TT1; (2) was never informed which act committed by Mundon coincided with counts 4 and 26, respectively; and (3) convicted Mundon of one count of TT1 and acquitted him of the other, there is a genuine possibility that different jurors concluded that Mundon committed different acts. . . . Thus, there may not have been a unanimous verdict as to Mundon s conviction for TT1. Accordingly, we hold that, to correct any potential confusion in this case, a specific unanimity instruction should have been given to ensure that the jury understood its duty to unanimously agree to a particular set of facts, and that the trial court plainly erred in failing to provide such an instruction. Id. at 354-55, 219 P.3d at 1141-42 (emphasis added) (citation, quotation marks and brackets omitted). This court s holding in Mundon relied in part on the -33- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** jury having acquitted the defendant of one of the charged counts.18 Accordingly, it could be argued that a unanimity instruction is required under Mundon only where the defendant is found guilty on fewer counts than there are acts. However, a trial court cannot decide to give a unanimity instruction after the jury returns its verdict. Accordingly, the reasonable inference from Mundon is that a unanimity instruction is required in the circumstances of the instant case, i.e., where the number of acts charged is identical to the number of acts offered in evidence, but the jury is not informed as to which act coincides with each count.19 18 The dissent suggests that this court found a genuine possibility of juror confusion in Mundon solely because the prosecution did not specify which act coincided with each count and the court did not give the jury a specific unanimity instruction. Dissenting opinion at 17. However, as noted, this court relied on three factors in concluding that there was a genuine possibility for juror confusion in Mundon: (1) no unanimity instruction was given; (2) the jury was not informed as which act corresponded with each count; and (3) the jury convicted Mundon on one count and acquitted him on the other. Id. at 354-55, 219 P.3d at 1141-42. 19 In oral argument, the State argued that State v. Keomany, 97 Hawai#i 140, 34 P.3d 1039 (App. 2000), is applicable to the present case. See Oral Arguments before the Supreme Court (Oct. 6, 2011), available at http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc30500.html. There, the defendant was indicted for and convicted on three counts of sexual assault in the first degree based on three distinct acts, and two counts of sexual assault in the third degree based on two distinct acts. Keomany, 97 Hawai#i at 143-45, 154, 34 P.3d at 1042-44, 1053. The ICA held that, under those circumstances, a specific unanimity instruction was not required. Id. at 154, 34 P.3d at 1053. The ICA distinguished Arceo because there were more discrete acts than counts in Arceo, but an equal number of acts and counts in Keomany. Id. In a concurring opinion, Judge Watanabe recognized that a specific unanimity instruction was not required under this court s caselaw, and opined that, since the jury returned guilty verdicts as to all of the sexual assault counts, any error caused by individual jurors considering different instances of culpable conduct for each count is probably harmless. Id. at 155, 34 P.3d at 1054. The State is correct that, under the rule in Keomany, a specific unanimity instruction would not be required in the instant case. However, (continued...) -34- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** In the instant case, the record does not reflect that the jury was informed of the act that corresponded to each count. Accordingly, under Mundon, the family court was required to provide the jury with a specific unanimity instruction, and its failure to do so constitutes error. P.3d at 1141-42. 121 Hawai#i at 354-55, 219 Erroneous instructions are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. Id. at 349, 219 P.3d 1136 (quoting Nichols, 111 Hawai#i at 334, 141 P.3d at 981). In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt[.] Arceo, 84 Hawai#i at 12, 928 P.2d at 854 (citations omitted). The purpose of a specific unanimity instruction is to protect a defendant s constitutional right to a unanimous verdict, where jurors otherwise would not know they are required 19 (...continued) Keomany preceded our decision in Mundon, which held that a specific unanimity instruction was required under circumstances similar to those presented here. 121 Hawai#i at 355, 219 P.2d at 1142. Accordingly, Keomany is unpersuasive. In oral argument, the State also argued that State v. Horswill, 75 Haw. 152, 158-59, 857 P.2d 579, 582-83 (1993), stands for the proposition that a unanimity instruction is not required where there are an equal number of acts and counts. However, Horswill did not address a defendant s constitutional right to a unanimous verdict, id., and in any event, preceded our decisions in Arceo and Mundon, which identify the circumstances under which such an instruction is required. -35- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** to unanimously agree that the defendant had committed the same act. See Mundon, 121 Hawai#i at 354-55, 219 P.3d at 1141-42. In the circumstances of the instant case, where the number of acts offered into evidence corresponds to the number of counts, the instruction guards against a potential lack of unanimity in the event the defendant is, for example, acquitted on one or more counts. See id. In the case of an acquittal, the one-to-one relationship between counts and acts is unclear, and there is therefore a genuine possibility that different jurors concluded [the defendant] committed different acts. Mundon, 121 Hawai#i at 354, 219 P.3d at 1141. However, in the instant case, there is no reasonable possibility that the jurors did not unanimously agree that Pecpec committed each of the 19 acts represented in the State s exhibits. The presentation of evidence, jury instructions, and arguments of counsel20 made clear that there was a one-to-one relationship between the State s exhibits and the charged counts. Accordingly, each juror must have concluded that Pecpec had committed each of the acts represented in the exhibits in order to have found him guilty on 19 counts. Moreover, the jury was instructed 25 separate times, 20 Although arguments of counsel are not evidence[,] State v. Yamada, 108 Hawai#i 474, 480 n.9, 122 P.3d 254, 260 n.9 (2005), they are nonetheless relevant to our analysis here. The arguments of counsel were consistent with the presentation of evidence and the jury instructions, which reflected a one-to-one relationship between acts and counts. -36- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** i.e., once for each count, as to the elements of the offense. The jury also was instructed 25 separate times that it was required to return a verdict of Not guilty or Guilty as charged of Violation of An Order for Protection on each count. Finally, the jury was instructed 25 separate times, Your verdict must be unanimous. Thus, it would have been unreasonable for a juror to believe that a single exhibit could have satisfied the State s burden of proof on more than one count. Counsels arguments reinforced the one-to-one relationship between acts and counts. In its opening statement, the State asserted that, between October 19 and November 8th of [2009], [Pecpec] left 25 voice mails and text messages total for the complainant and that Pecpec is charged with 25 counts of Violation of an Order for Protection. During closing argument, the State argued: For each violation of an Order for Protection, the State needs to prove four things. . . . . . . . Now, turning to the third element -- and again, these apply to each of the 25 charges -- did he intentionally or knowingly engage in conduct that was prohibited by the Order for Protection? . . . . Well, it wasn t an accident. He left her 17 voice mails. You heard the voice mails. . . . He sent her eight text messages. He acknowledged the text message referring to the GPS. . . . . . . . Now, you have before you 25 counts and numerous dates of incidents. Let s go over it quickly to try to break it down and make it a little easier. Okay. So we re talking about 25 counts of Violation of an Order for Protection. We know that they fall into two categories -- voice mails and text messages. The voice mails would be your first 17 counts, Counts [1] to [17]. The text messages would -37- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** be your next eight counts, Counts [18] to [25]. Now, let s look first at the voice mails. The voice mails are grouped in terms of the dates of incident. Counts [1] through [6] are from October 19, 2009; Count [7] is from October 22; Counts [8] to [15] are November 6; Count [16] from November 7; and Count [17] is from November 8. Now, you listened to voice mails. These voice mails are also associated with these dates. Exhibit 23 is the voice mail from October 22; Exhibit[s] 15 to 22 are from November 6; Exhibit 14 is from November 7; Exhibit 13 is from November 8. Switching now to the text messages. Counts [18] to [25], they are also grouped in terms of the dates of incident. Counts [18] to [22] are from November 6; Counts [22] to [25] are from November 7. For each of these text messages there are exhibits. Exhibits 5 through 9 are the text messages from November 6; and Exhibits 10 to 12 are the text messages from November 7. Ladies and gentlemen, you heard all the evidence. You ve seen the witnesses testify. Defendant Orlando Pecpec is guilty of 25 counts of Violation of an Order for Protection. (Emphasis added). Likewise, defense s closing fairly indicated a one-toone relationship between the counts and the acts: Okay. Now, let s further review the testimony as to each count. [CW] admitted to you in court that she knows that the Order for Protection allowed [Pecpec] to have limited contact with her regarding attending courtroom proceedings. You know what? For Count I, October 19th, 2009, at 10:03, that s exactly what had happened. [Pecpec] -- we know from (indiscernible) also, too, that there was a hearing. We know that [Pecpec] got to court late, at about 9:30. He testified that he then called [CW] to ask about the hearing. The time frame of the -- of the call and the circumstances, that he was late, about the -- that he -- about the time that the call was made, as [CW] says, supports [Pecpec s] testimony. And that s what [Pecpec s] call was about and not as what [CW] would have you to believe. You know that [CW] lacks credibility because of the inconsistent -inconsistencies in her testimony about the lack of reporting on the October 19th, 2009, messages. I ve spoken about this just briefly before. But let me go into detail. This has to do with Counts [2], [3], and [4]. She testified, as I said before, touched on it lightly. She says that -- she testified that the -38- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** reason she did not make the recordings of messages supposedly left by [Pecpec] on the morning of the 19th -- October 19th, 2009, at 10:14, 10:24, and 10:26 were because she had written down whatever the message said on the statement she gave to police. (Emphasis added). And finally, in rebuttal closing, the State again highlighted the one-to-one relationship between the counts and the contacts: Ladies and gentlemen, the Order for Protection prohibits him, prohibits [Pecpec] from contacting [CW], threatening her. State has shown beyond a reasonable doubt that he did just that 25 times. (Emphasis added). Because the one-to-one relationship between counts and acts was made clear to the jury, and the jury found Pecpec guilty on 19 counts for which 19 exhibits were presented at trial, there is no genuine possibility that different jurors concluded that [the defendant] committed different acts. 21 21 Cf. Mundon, 121 The dissent, relying on Arceo, suggests that it is speculation to conclude that the jury unanimously found Pecpec had committed each of the 19 acts offered in support of the 19 counts. Dissenting opinion at 24. However, as stated, Arceo is distinguishable from the instant case, because it involved separate and distinct culpable acts [] subsumed within a single count, and therefore a genuine possibility that the jurors may not have unanimously agreed that the defendant committed the same act. 84 Hawai#i at 32-33, 928 P.2d at 874-75 (citation omitted). In contrast, in the instant case, the State did not present evidence of multiple acts that could support conviction under each count. To the contrary, the 19 counts on which Pecpec was found guilty were supported at trial by 19 exhibits, with each exhibit reflecting a single act. Accordingly, there is no reasonable possibility that Pecpec was convicted on less than a unanimous verdict. In addition, the ICA dissent opined that some of the jurors may have relied on one act in order to find Pecpec guilty on more than one count. Pecpec, 2011 WL 2037679, at *7. Put another way, the ICA dissent was concerned that some jurors may not have been aware of the one-to-one relationship between the counts and acts. However, because we conclude that the one-to-one relationship would have been clear to a reasonable juror, we do (continued...) -39- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** Hawai#i at 354-55, 219 P.3d at 1141-42 (citation omitted); State v. Valentine, 93 Hawai#i 199, 208, 998 P.2d 479, 488 (2000) (holding that no specific unanimity instruction was necessary because there was no danger that the jury would be confused regarding the conduct of which [the defendant] was accused and that constituted the charged offense ). Accordingly, the family court s error in failing to give a unanimity instruction was harmless beyond a reasonable doubt. B. The family court abused its discretion in sentencing Pecpec to a consecutive term on Count 13 Pecpec argues that the family court erred in sentencing him to a consecutive term on Count 13 based on the act represented in Exhibit 17 because the verdict on that count was not unanimous. However, as discussed supra, the jury must have unanimously concluded that Pecpec committed the act represented in Exhibit 17 to have found him guilty on all 19 counts. Nevertheless, Pecpec argues that the sentence was improper because, it was impossible to know which acts of 11/6/08 attached to which counts of the indictment [sic.] Pecpec contends that the trial court should not be connecting exhibit 17 to count 13 after conferring with counsel for both the prosecution and the defense[.] 2037679, at *5). (Quoting Pecpec, 2011 WL We agree. 21 (...continued) not find a genuine possibility for juror confusion in this respect. -40- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** It is axiomatic that a criminal sentence is imposed in relation to a specific offense upon which a defendant has been found guilty. See HRS § 706-605 (Supp. 2006) ( Authorized disposition of convicted defendants ) (emphasis added); HRS § 706-605 cmt. ( This section states the various sentencing alternatives that are available to the court upon conviction of a defendant for an offense. ) (emphasis added). However, in the instant case, the record does not reflect that the jury specifically correlated Exhibit 17 with Count 13. Accordingly, the family court sentenced Pecpec based on conduct that was not necessarily linked to Count 13 by the jury. In addition, although the family court asked both counsel which count of the complaint reflected the conduct in Exhibit 17, defense counsel was unable to respond because he didn t bring [his] complete file. Accordingly, defense counsel did not affirmatively correlate Exihibit 17 with Count 13. Finally, we note that the complaint identified specific police reports as relating to each count. Based on those police reports, it appears that Exhibit 17, which CW testified was received on November 6, 2011 at 1:28 p.m., would correspond to Count 10, rather than Count 13. In sum, the record does not support an inference that the jury found Pecpec guilty on Count 13 based specifically on -41- ***FOR PUBLICATION IN WEST S HAWAI#I REPORTS AND PACIFIC REPORTER*** the conduct memorialized in Exhibit 17.22 Accordingly, the family court abused its discretion in sentencing Pecpec to a consecutive term on that basis.23 IV. Conclusion For the foregoing reasons, we vacate Pecpec s sentence on Count 13 and remand for resentencing. We affirm the family court s judgment of conviction and sentence in all other respects. Stuart N. Fujioka for petitioner/defendantappellant. /s/ Mark E. Recktenwald Keith M. Kaneshiro, Prosecuting Attorney, and Donn Fudo, Deputy Prosecuting Attorney, for respondent/ plaintiff-appellee. /s/ Sabrina S. McKenna /s/ Paula A. Nakayama 22 We respectfully disagree with the dissent s assertion that we have concluded that the verdict on Count 13 was not unanimous. Dissenting opinion at 14. Our concern with regard to Count 13 is not based on a purported lack of unanimity, and is limited to the court s sentence, rather than the jury s verdict. As stated, we vacate the consecutive term sentence on Count 13 because the record does not reflect that the jury specifically correlated Exhibit 17 to Count 13. We note that a unanimity instruction would not cure this defect, as it nonetheless would not be apparent which exhibit the jury relied on in convicting on Count 13. 23 Based on our resolution of this issue, we do not address Pecpec s argument that the consecutive term sentence violated his rights to due process, equal protection, and against cruel and unusual punishment under the United States and Hawai#i constitutions. -42-
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