State v. Becker ( 2021 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2021
07:52 AM
Dkt. 174 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARK BECKER, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Defendant-Appellant Mark Vincent Becker (Becker)
appeals from the Judgment Conviction and Sentence, Notice of
Entry (Judgment) entered on August 1, 2018, in the Circuit Court
of the Second Circuit (Circuit Court).1
On April 25, 2017, Becker was charged by complaint with
one count of Attempted Murder in the Second Degree (Attempted
Murder) in violation of Hawaii Revised Statutes (HRS)
1
The Honorable Rhonda I.L. Loo presided.
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§§ 705-500(2) (2014)2 and 707-701.5 (2014).3 Following a jury
trial, Becker was convicted of the lesser-included offense of
Attempted Assault in the First Degree (Attempted Assault First)
in violation of HRS §§ 705-500(2) and 707-710 (2014),4 and he was
sentenced to a term of ten years imprisonment.
Becker raises six points of error on appeal, contending
that: (1) the Circuit Court deprived Becker of his
constitutional right to self-representation; (2) the Circuit
Court improperly gave the jury an instruction on Attempted
Assault First as an included offense; (3) the Circuit Court erred
by failing to provide a written instruction on the included
2
The statute provides, in relevant part:
§ 705-500 Criminal attempt. . . .
(2) When causing a particular result is an element of
the crime, a person is guilty of an attempt to commit the
crime if, acting with the state of mind required to
establish liability with respect to the attendant
circumstances specified in the definition of the crime, the
person intentionally engages in conduct which is a
substantial step in a course of conduct intended or known to
cause such a result.
3
At the time Becker was charged, HRS § 707-701.5 provided:
§ 707-701.5 Murder in the second degree. (1) Except
as provided in section 707-701, a person commits the offense
of murder in the second degree if the person intentionally
or knowingly causes the death of another person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
in section 706-656.
4
HRS § 707-710 provides:
§ 707-710 Assault in the first degree. (1) A person
commits the offense of assault in the first degree if the
person intentionally or knowingly causes serious bodily
injury to another person.
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offense of Assault in the Third Degree (Assault Third);5 (4) the
Circuit Court erred by failing to instruct the jury on the
included offense of Reckless Endangering in the Second Degree
(Reckless Endangering Second);6 (5) Becker was deprived of his
right to effective assistance of counsel at trial; and (6) there
was insufficient evidence to convict Becker of Attempted Assault
First.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Becker's points of error as follows:
(1) Becker contends that the Circuit Court denied him
his right to self-representation, citing Faretta v. California,
422 U.S. 806, 834 (1975) (holding that a defendant must be free
5
HRS § 707-712 (2014) provides:
§ 707-712 Assault in the third degree. (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.
(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty misdemeanor.
6
HRS § 707-714 (2014) provides, in relevant parts:
§ 707-714 Reckless endangering in the second degree.
(1) A person commits the offense of reckless endangering in
the second degree if the person:
(a) Engages in conduct that recklessly places
another person in danger of death or serious
bodily injury; or
. . . .
(2) Reckless endangering in the second degree is a
misdemeanor.
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to decide to conduct his own defense), as well as various cases
requiring a voluntary, knowing, and intelligent waiver of the
right to counsel. He submits that, on March 5, 2018, he
"specifically asked the court if he could proceed to trial
without an attorney." That is not, however, a completely
accurate characterization of the record.
At the March 5, 2018 hearing, defense counsel Richard
Gronna (Gronna) orally moved to withdraw as counsel, at Becker's
request. After the Circuit Court granted Gronna's motion, the
court said it would take off the motions in limine that were set
to be argued that day, as well as the trial that was scheduled to
start the next day, and the court would set up a hearing for the
next week and would try to find another attorney for Becker at
that time. Becker then asked the court questions on various
issues, ending with:
[Becker]: Well, can I ask a question? Like is the
trial going to be -- could I just defend myself and have a
nonjury trial? Do I have to have a jury? Can I refuse a
jury trial?
THE COURT: You want to -- okay. So you want to waive
your --
[Becker]: How does that work?
THE COURT: -- right to an attorney and you want to
waive your right to a jury?
[Becker]: Yeah.
THE COURT: You want both?
[Becker]: The jury is not a good thing for me here in
Hawaii.
THE COURT: So you're asking to waive your right to a
jury and you're -- so you want an attorney but you don't
want a jury trial? Is that what you're saying?
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[Becker]: I think that a jury trial in my -- being
the person that I am and here in Hawaii, it's not a jury of
my peers. It's people who don't like me from --
THE COURT: Okay.
[Becker]: -- all (inaudible).
THE COURT: But you want --
[Becker]: So --
THE COURT: -- an attorney, right?
[Becker]: -- I think -- you know, I'd trust myself
with you as a person.
THE COURT: But you want an -- you want an attorney to
represent you, correct?
[Becker]: Can I just have an attorney to help me --
THE COURT: Well --
[Becker]: -- and start the trial? Can we go to trial
immediately? If I don't (inaudible) the jury --
THE COURT: Okay. . . . There's two things you're
asking me.
[Becker]: Right.
THE COURT: One, you're saying you want an attorney.
[Becker]: Right.
THE COURT: And secondly, you're saying you want --
you don't want a jury to hear your case. Is that what -- is
that what I'm hearing from you?
[Becker]: I believe so, yeah.
THE COURT: Okay. Okay.
. . . .
THE COURT: So first -- first things first.
[Becker]: Okay.
THE COURT: If you don't -- if you want an attorney, I
have to continue that so we can find you an attorney.
That's the first thing. Okay? And that's going to take
some time because we've gone through a few -- quite a few
attorneys. Now it's time to look for someone else. Okay?
So that's part of it. That's why we're continuing it to
next week Wednesday.
Secondly, yes, there's an option for you to waive jury
trial and just have a trial before myself, just a judge.
Yes, that is an option. But I suggest that you -- maybe you
should talk it over with your new attorney first, and if
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that's the way you folks want to go, if that's the way you
want to go, that is a very real possibility to do a
jury-waived trial, meaning there will be no jury to hear
your case. It will just be the attorneys, myself, and you
and the witnesses.
[Becker]: And what if I don't even want an attorney
at all?
THE COURT: Then I will -- if you don't want an
attorney -- I want you to think about this because it's a
very serious charge. It's currently an attempted murder in
the second degree, so you're looking at life with a
possibility of parole. Correct? So it's a very serious
offense.
So why don't you think about it, and when we come back
next week, we'll have an attorney for you. If you tell me
next week that you want to represent yourself, I'm going to
ask you a lot of questions just to make sure that it's truly
what you want to do. But you should think about that very
hard because if you get convicted of attempted murder in the
second degree, you're looking at life imprisonment without
-- with the possibility of parole.
[Becker engages in various unrelated inquiries, with
responses by the Court and attorneys. Then:]
[Becker]: Can I ask another question? What about the
fact of the six-month speedy trial thing? Can I just have
someone show me the waivers that I've signed and the way it
checks out on the calendar.
THE COURT: You know, you can raise all these issues,
Mr. Becker, but can you raise them with your new attorney,
first of all? Or if you don't want an attorney, we'll go
through the colloquy next week and you can possibly
represent yourself. It's up to you.
But it's probably easier and it would make more sense
to have an attorney, because, again, you need to understand
you're looking at attempted murder in the second degree,
which carries it -- with it a life possibility -- with the
possibility of parole sentence. So it's a very, very –
[Becker]: Most of those --
THE COURT: -- serious charge.
[Becker]: Yeah. Right. And the --
THE COURT: Okay. So we'll see you next week
Wednesday. Okay?
Thank you.
[No further response from Becker. Court was adjourned.]
(Emphasis added).
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Accordingly, Becker did not unequivocally say that he
wanted to represent himself. His inquiry to the Circuit Court
was more in the nature of: what if I want to represent myself?
Under no circumstances would Becker's inquiries be considered a
valid waiver of his right to an attorney. The Circuit Court's
response was to try to clarify what Becker was asking, and then
to suggest that Becker think it over and talk to new counsel
about it. The court twice informed Becker that when they came
back the next week, after Becker had an opportunity to speak with
new counsel, if Becker did not want to be represented by counsel,
the court would then colloquy him to make sure that was truly
what he wanted to do. Throughout the exchange, the court made it
clear that it was Becker's decision whether to be represented by
counsel or be self-represented.
At the March 14, 2018 hearing, newly-appointed trial
counsel Gerald Johnson (Johnson) appeared and said he would need
six weeks to prepare for trial. Becker indicated that he wanted
to "go to trial as fast as possible." However, he also indicated
that he wanted to meet with Johnson and "talk about everything."
Becker was clearly unhappy with any further delay and wanted a
"speedy trial." At one point, Becker said he did not need any
help, but then again agreed to consult with counsel.
[Becker]: If it's going to go this route, another six
-- two months sitting in jail, I do not need this help, just
so you know. I want to see the Rule 44 waivers and I want
them written down on paper, the dates I signed them, when
the went to --
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THE COURT: You talk with Mr. Johnson when you get a
chance.
[Becker]: Fine.
Becker then refused to waive his speedy trial rights,
but never asserted that he wanted to waive his right to counsel
and proceed pro se. The Circuit Court never denied a request for
Becker to proceed without counsel. At no point in subsequent
proceedings did Becker state that he wanted to exercise his right
to represent himself at trial.
Becker points to no case law supporting his argument
that his constitutional right to self-representation was violated
under these circumstances, and we find none. Therefore, based on
the record in this case, we conclude that Becker's point of error
is without merit.
(2) Becker argues there was no rational basis to
support the jury instruction on Attempted Assault First as an
included offense of Attempted Murder, citing HRS § 701-109(5)
(Supp. 2019). The statute provides, in relevant part:
§ 701-109 Method of prosecution when conduct
establishes an element of more than one offense. . . .
. . . .
(4) A defendant may be convicted of an offense
included in an offense charged in the felony complaint,
indictment, or information. An offense is so included when:
(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged; or
(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise
included therein; or
(c) It differs from the offense charged only in the
respect that a less serious injury or risk of
injury to the same person, property, or public
interest or a different state of mind indicating
lesser degree of culpability suffices to
establish its commission.
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(5) The court is not obligated to charge the jury
with respect to an included offense unless there is a rational
basis in the evidence for a verdict acquitting the defendant
of the offense charged and convicting the defendant of the
included offense.
"[J]ury instructions on lesser-included offenses must
be given where there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting the defendant of the included offense." State v.
Austin, 143 Hawai#i 18, 38, 422 P.3d 18, 38 (2018) (citing State
v. Flores, 131 Hawai#i 43, 51, 314 P.3d 120, 128 (2013)).
Here, the instructions to the jury included:
Instruction No. 17
In the Complaint, the Defendant, MARK BECKER, is
charged with the offense of Attempted Murder in the Second
Degree.
A person commits the offense of Attempted Murder in
the Second Degree if he intentionally engages in conduct
which, under the circumstances as he believes them to be, is
a substantial step in a course of conduct intended or known
to cause the death of another person.
There are two material elements of the offense of
Attempted Murder in the Second Degree, each of which the
prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That on or about April 2, 2017, in the County
of Maui, State of Hawaii, the Defendant, MARK
BECKER, intentionally engaged in conduct; and
2. That the conduct, under the circumstances as
Defendant believed them to be, was a substantial
step in a course of conduct intended or known to
be practically certain by the Defendant to cause
the death of Carlos Loria.
Conduct shall not be considered a substantial step
unless it is strongly corroborative of the Defendant's
intent to commit Murder in the Second Degree, which is,
intentionally or knowingly causing the death of another
person.
. . .
Instruction No. 19
If and only if you find the Defendant not guilty of
Attempted Murder in the Second Degree, or you are unable to
reach a unanimous verdict as to Attempted Murder in the
Second Degree, then you must consider whether the Defendant
is guilty or not guilty of the included offense of Attempted
Assault in the First Degree.
A person commits the offense of Attempted Assault in
the First Degree if he intentionally engages in conduct
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which, under the circumstances as he believes them to be, is
a substantial step in a course of conduct intended or known
to cause serious bodily injury to another person.
There are two material elements of the offense of
Attempted Assault in the First Degree, each of which the
prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That on or about April 2, 2017, in the County of
Maui, State of Hawaii, the Defendant
intentionally engaged in conduct; and
2. That the conduct, under the circumstances as
Defendant believed them to be, was a substantial
step in a course of conduct intended or known to
be practically certain by the Defendant to cause
serious bodily injury to Carlos Loria.
Conduct shall not be considered a substantial step
unless it is strongly corroborative of the Defendant's
intent to commit Attempted Assault in the First Degree,
which is intentionally causing serious bodily injury to
another person.
(Emphasis added).
The difference between these two instructions was
whether Becker's conduct could have been intended or known to be
practically certain to cause "the death of Carlos Loria" versus
"serious bodily injury to Carlos Loria" (Loria).
Becker argues that there was no rational basis for the
jury to find there was an attempted assault because Becker never
denied hitting Loria's bicycle with his van; rather, Becker
argues that it was not intentional. Becker further argues in
this case, there was "no attempt" because it was a completed act,
i.e., a completed act of Assault. However, based on the
evidence, discussed below, there was a rational basis for the
jury to find that Becker intended or knew that hitting Loria's
bicycle with his van was practically certain to cause serious
bodily injury to (but not the death of) Loria, but a jury could
determine that Loria's injuries did not meet the definition of
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serious bodily injury. See HRS § 707-700 (2014) (defining
serious bodily injury as "bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function
of any bodily member or organ").
In his reply brief, Becker also points to the testimony
of Dr. Gabrielle O'Sullivan (Dr. O'Sullivan) to argue that
Loria's resultant injuries were not serious enough to create "a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function
of any bodily member or organ" as "serious bodily injury" is
defined by statute.
Other evidence at trial -- including surveillance
footage and witness testimony -- showed: Becker's van striking
Loria's bicycle causing Loria to launch through the air off of
the bicycle; the bicycle being broken by being run over by the
van after Loria was thrown from it; Loria's testimony of the van
passing "right by my head" when it passed where Loria had landed;
and testimony by Dr. O'Sullivan that Loria's injuries could have
been life-threatening.
While the evidence arguably showed that Loria did not
ultimately suffer a "serious bodily injury," under the facts
here, with the van striking the bicycle that Loria was riding,
the jury could rationally conclude that the act was intended by
Becker and could have been practically certain to cause serious
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bodily injury to Loria. Thus, there was a rational basis here
for the jury to acquit Becker of Attempted Murder and convict
Becker of Attempted Assault First. See Flores, 131 Hawai#i at
53, 314 P.3d at 130. We conclude the Circuit Court did not err
by including the Attempted Assault First instruction.
(3) Becker argues that the Circuit Court plainly erred
in not providing the jury with a written copy of Instruction No.
21, which was read to the jury, along with the other jury
instructions. Instruction No. 21 instructed the jury on the
lesser included offense of Assault Third.7
The record on appeal contains a document entitled Jury
Instructions Read to the Jury/Given to the Jury Nos. 1-32. It
appears that, prior to the court's oral reading of the
instructions, defense counsel was provided a "clean copy" of the
written instructions that were to be read to the jury.8 Prior to
reading the instructions, the Circuit Court said, "Ladies and
gentlemen, it is now my duty to instruct you on the law
applicable to this case. You have in front of you packets of the
jury instructions. So you're free to read along with me." Thus,
at this point, it appears that the court, all members of the
7
At trial, Becker made a blanket objection to instructing the jury
on any lesser included offenses. Instruction No. 21 was given to the jury
over Becker's objection.
8
At the beginning of the proceeding, Defense counsel said to the
court, "And, Your Honor, I apologize. I didn't print out the clean copy of
the new instructions." The court responded, "So the clerk will give you a
clean copy once we settle the instructions." At no point did counsel indicate
that he had not been given the clean copy as directed by the court.
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jury, and prosecution and defense counsel had the written
instructions in front of them, and everybody was invited to
follow along as the court read them.
The transcript of the proceedings reflects that, after
reading Instruction No. 20, the court read Instruction No. 21 to
the jury, as follows:
If and only if, one, you find the defendant not guilty
of Attempted Murder in the Second Degree or you are unable
to reach a unanimous verdict as to Attempted Murder in the
Second Degree and, two, you find the defendant not guilty of
offense of Attempted Assault in the First Degree or you are
unable to reach a unanimous verdict as to Attempted Assault
in the First Degree and, three, you find the defendant not
guilty of Assault in the First Degree or you are unable to
reach a unanimous verdict as to Assault in the Second
Degree, then you must consider whether the defendant is
guilty or not guilty of the included offense of Assault in
the Third Degree.
A person commits the offense of Assault in the Third
Degree if he intentionally, knowingly or recklessly causes
bodily injury to another person.
There are two material elements of the offense of
Assault in the Third Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
One, that on or about April 2nd, 2017, in the County
of Maui, State of Hawaii, the defendant caused bodily injury
to Carlos Loria; and two, that the defendant did so
intentionally, knowingly or recklessly.
The Circuit Court then proceeded to read Instruction
No. 22, and the rest of the instructions. When finished, the
court asked counsel to approach the bench and, outside the
hearing of the jury, the court asked, "Any objections to the
reading?" Both attorneys responded, "No objection." Nor does
the record reflect any one else in the courtroom -- such as court
personnel or the jury members who were encouraged to read along
with the judge -- noting a missing page in the written packet of
jury instructions. Two jury communications were put on the
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record, neither of which raised any question about Instruction
No. 21. Later that same day, the jury indicated that it reached
a unanimous verdict finding Becker "Guilty of the included
offense of Attempted Assault in the First Degree."
Nevertheless, the document that was filed in the
Circuit Court record on May 16, 2018, nine days later, which is
entitled the Jury Instructions Read to the Jury/Given to the Jury
Nos. 1-32, is missing the page containing Jury Instruction No.
21.9 We note that the title of the document indicates that it
includes the instructions read to the jury, which is plainly
inconsistent with the transcript of the court's reading of the
instructions, including Instruction No. 21.
An appellate court "will apply the plain error standard
of review to correct errors [that] seriously affect the fairness,
integrity, or public reputation of judicial proceedings, to serve
the ends of justice, and to prevent the denial of fundamental
rights." State v. Kikuta, 125 Hawai#i 78, 95, 253 P.3d 639, 656
(2011) (citation and internal quotation marks omitted).
Notwithstanding that there appears to be a page missing
in the document filed by the Circuit Court on May 16, 2018,
nothing presented to this court or in the record on appeal
clearly indicates that the packet of instructions provided to the
jury was missing Instruction No. 21, as opposed to indicating
that a clerical error occurred in conjunction with the filing of
9
There was one numbered instruction on each page.
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that document. Moreover, considering the instructions as a whole
and all of the circumstances here, including but not limited to
the judge's oral charge just hours before the jury's verdict,
which indisputably contained Instruction No. 21, we conclude that
Becker has not shown that there was a reasonable possibility that
error with respect to the Jury Instruction addressing Assault
Third contributed to his conviction.
(4) Becker argues that the Circuit Court plainly erred
in failing to sua sponte instruct the jury on the included
offense of Reckless Endangering Second.
As set forth above, "jury instructions on
lesser-included offenses must be given where there is a rational
basis in the evidence for a verdict acquitting the defendant of
the offense charged and convicting the defendant of the included
offense." Flores, 131 Hawai#i at 51, 314 P.3d at 128. A person
commits the misdemeanor offense of Reckless Endangering Second if
he or she "[e]ngages in conduct that recklessly places another
person in danger of death or serious bodily injury." HRS § 707-
714(1)(a). Hawai#i courts have recognized Reckless Endangering
Second to be a lesser-included offense of, inter alia, attempted
murder. See State v. Rumbawa, 94 Hawai#i 513, 516-21, 17 P.3d
862, 865-70 (App. 2001) (citing State v. Feliciano, 62 Haw. 637,
618 P.2d 306 (1980)).
Here, Becker testified, inter alia, that he was only
trying to capture Loria, after a prior altercation with Loria
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followed by Loria allegedly smashing Becker's windshield with a
rock. Becker said, at one point, he was just trying to knock
Loria off the bicycle. He also testified that his visibility was
limited and the "accident" happened when he was focused on trying
to avoid hitting a fire hydrant. Accordingly, Becker argues
that, based on his testimony, a jury could have found that he
acted recklessly and his recklessness placed Loria in danger of
death or serious bodily injury.
Based on our review of all of the evidence, we conclude
that there was a rational basis in the evidence for a verdict
acquitting Becker of, inter alia, Attempted Murder, and instead
convicting him of Reckless Endangering Second.
The State argues that any such error is harmless beyond
a reasonable doubt under State v. Magbulos, 141 Hawai#i 483, 413
P.3d 387 (App. 2018), because the jury convicted Becker of the
higher-included offense of Attempted Assault First, despite being
instructed on, inter alia, Assault Third, which like Reckless
Endangering Second is a misdemeanor-level offense. In Magbulos,
this court discussed the supreme court's jurisprudence concerning
whether failure to instruct on a lesser-included offense can be
harmless error. Id. at 498-99, 413 P.3d at 402-03 (citations
omitted).
Here, the jury was instructed on Attempted Murder,
Attempted Assault First, Assault Second, and Assault Third, and
was found guilty of Attempted Assault First, which is two levels
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higher than Reckless Endangering Second. The jury was not left
with an "all or nothing" choice between the guilty verdict it
rendered and a complete acquittal. See id. As this court held
in Magbulos, "absent unusual circumstances, the failure to
instruct on a lesser included offense two levels below the
offense for which the defendant is found guilty will ordinarily
be harmless." Id. at 499, 413 P.3d at 403. Here, akin to
Magbulos, it strains credulity to believe that the jury who found
Becker guilty of Attempted Assault First, despite being
instructed on the lesser-included offenses of Assault Second, and
Assault Third, might reasonably have found him guilty of Reckless
Endangering Second if they had been instructed on it. We
therefore conclude that there is no reasonable possibility that
the Circuit Court's failure to instruct on Reckless Endangering
Second affected the outcome in this case.
(5) Becker argues that he was deprived of his right to
effective assistance of counsel at trial on multiple grounds.
First, Becker argues that competent trial counsel would
have objected to, and/or moved to redact, the "lengthy" portion
of the audio recording of a voluntary statement in which Maui
Police Department Detective Dennis Lee questioned Becker
regarding Becker's attempts to obtain surveillance video from
Ohana Drapery & Upholstery (Ohana Drapery), including whether
Becker had offered to buy such footage from Ohana Drapery.
Becker argues that this evidence was essentially prior bad act
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evidence under Hawai#i Rules of Evidence Rule 404, and that it
undermined his credibility because it could have appeared as
though he was afraid that such video could contain incriminating
evidence that he sought to hide or destroy.
However, Becker's theory of the case was consistent
with his recorded statement that Loria was the aggressor that
Becker only acted in response to; Johnson argued as much in his
closing: "[a]nd one thing that is good is that you will have Mr.
Becker's statement to the police." Likewise, Becker's attempt to
obtain evidence from Ohana Drapery –- which was located at the
site of the initial altercation with Loria -- was consistent with
Becker's story that he was looking for evidence to support his
account of fearing Loria as an aggressor. Becker testified that
he was not offering to buy the evidence, but that he was trying
to indicate his seriousness by "pull[ing] out a $100 bill in my
pocket" as a means of showing that he wasn't "a homeless guy"
wasting the business owner's time.
Thus, it appears that trial counsel's non-objection to
the portion of the recorded police interview discussing an
alleged attempt to obtain video evidence from Ohana Drapery had
an obvious tactical basis and a valid strategic rationale. State
v. Richie, 88 Hawai#i 19, 39-40, 960 P.2d 1227, 1247-48 (1998)
("matters presumably within the judgment of counsel, like trial
strategy, will rarely be second-guessed by judicial hindsight."
(citation and internal quotation marks omitted)). We conclude
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that the lack of objection to this evidence did not fall below
the range of competence demanded of attorneys in criminal cases.
State v. Wakisaka, 102 Hawai#i 504, 513-14, 78 P.3d 317, 326-27
(2003).
Relatedly, Becker argues that trial counsel was
ineffective when he withdrew Becker's Motion in Limine because
that motion would have led to the redaction of the Ohana Drapery
questions and answers. The State notes that Johnson's withdrawal
of the motion was at Becker's specific request when Johnson
wanted to proceed with it, which Becker replies shows that
Johnson performed incompetently because he should not have
acceded to Becker's request on withdrawing the motion. However,
as previously discussed, withdrawal of the Motion in Limine was
consistent with Becker's strategy of demonstrating that Becker
was looking for evidence to bolster his claim that Loria was the
aggressor and wrongdoer, and Becker was just trying to capture
him, presumably to bring him to justice, when the van-bicycle
incident occurred. Accordingly, we reject Becker's argument that
he was denied effective assistance of counsel when Johnson
withdrew the Motion in Limine previously filed by Gronna.
Becker also argues that trial counsel "proved
ineffective in getting Loria to admit" to a second confrontation
with Becker. Counsel tried to impeach Loria with a police
report, but Loria claimed that the report was not a correct
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summary of what he told the police. Becker contends that
competent counsel would have then subpoenaed the police officer
who took Loria's statement. However, as the State argues,
whether there was one confrontation or two had little or no
bearing on the charged conduct and Becker's state of mind. We
cannot conclude that counsel's failure to further impeach Loria
constituted ineffective assistance of counsel.
Finally, Becker argues that counsel's failure to
request a jury instruction on Reckless Endangering Second and
failure to object to the lack of a written jury instruction on
Assault Third were further instances of ineffective assistance of
counsel. However, as we have rejected Becker's argument that any
such instructional error constituted reversible error, we
conclude that any such error did not result in a withdrawal or
substantial impairment of a potentially meritorious defense.
Accordingly, we conclude that Becker's contentions that
he was provided ineffective assistance of trial counsel are
without merit.
(6) Becker argues that there was not sufficient
evidence to convict him of Attempted Assault First, pointing to
his own testimony as credible and Loria's testimony as not
credible, as well as his earlier argument that there was no
evidence of an attempt offense because there was a completed act
when Becker struck Loria's bicycle. Becker's argument is without
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merit. As discussed in conjunction with our disposition of
Becker's argument that the Circuit Court erred in instructing the
jury on Attempted Assault First, and viewing the evidence adduced
at trial in the light most favorable to the prosecution, there
was evidence of sufficient quality and probative value to enable
the jury to find that Becker intentionally engaged in conduct
that constituted a substantial step in a course of conduct that
Becker intended or knew to be practically certain to cause
serious bodily injury to Loria.
For these reasons, the Circuit Court's August 1, 2018
Judgment is affirmed.
DATED: Honolulu, Hawai#i, March 30, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Dwight C.H. Lum, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Gerald K. Enriques, Associate Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
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