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State v. Kipi5/8/1991
Plaintiff-appellant State of Hawaii (State) appeals the trial court's dismissal of burglary and terroristic threatening charges against defendant-appellee Jonathan K. Kipi (Kipi). The charges were based on the same conduct that supported a criminal contempt charge against Kipi for which he had already been convicted and sentenced by the family court. We find that double jeopardy principles bar the subsequent prosecution and therefore affirm the trial court's dismissal.
I.
On October 11, 1989, at 4:00 a.m., Kipi entered the home of his ex-girlfriend, Linda Yamasaki (Yamasaki). While in the residence, Kipi threatened Yamasaki and two other persons, Sergio Chaulet (Chaulet), Yamasaki's boyfriend, and David Harris (Harris), Yamasaki's housemate. A complaint against Kipi was filed on October 24, 1989, for the offense of Burglary in the First Degree, in violation of HRS § 708-810(1)(c) (count I) and Terroristic Threatening in the Second Degree, in violation of HRS § 707-717(1), based on the threats against Yamasaki, Chaulet and Harris (counts II, III and IV, respectively). On November 6, 1989, Kipi pleaded not guilty to the charges in the complaint.
Before the incident in question, Yamasaki had petitioned the family court for a temporary restraining order (TRO) for protection against Kipi. Yamasaki's petition was granted on August 7, 1989 and a TRO issued. On August 21, 1989, the family court extended the protective order, pursuant to a show cause hearing, until February 17, 1990. Thus, the protective order was in effect at the time Kipi broke into Yamasaki's house on October 11, 1989. The protective order was a form order in which the following was checked:
Petitioner(s) [Yamasaki] and Respondent(s) [Kipi] are mutually enjoined and restrained from contacting, threatening or abusing each other and anyone living with the other party (including but not limited to their home or place of employment) and maliciously damaging the property of the other party.
On October 12, 1989, the day after Kipi's alleged burglary and threats, a police officer filed a family court petition against Kipi alleging that he had intentionally disobeyed the protective order and thereby committed the offense of Criminal Contempt of Court, in violation of HRS § 710-1077. On December 7, 1989, the State was ready to proceed to trial in family court on the contempt charge against Kipi when he moved to change his plea to no contest. The State did not object to the change of plea, but asked that five months of incarceration be imposed upon Kipi because of the egregious nature of the offense. In responding to the court's request for particular facts constituting the protective order violation, the prosecutor stated that:
a. The violation of the Protective Order did arise out of an incident in which Defendant did contact Petitioner, Ms. Linda Yamasaki, at her home on October 11, 1989, very early in the morning.
b. Ms. Linda Yamasaki was asleep at the time and awoke upon hearing the Defendant enter into her home.
c. Also awakened by Defendant's entrance into the home were Mr. David Harris, Mr. Serio Chaulet, and Ms. Rebecca Moore, all of whom reside with Ms. Yamasaki.
d. At the time of the violation, the Defendant did make verbal threats to Ms. Linda Yamasaki, Mr. Serio Chaulet, and Mr. David Harris.
In addition, the prosecutor noted on the record that he believed, based upon his reading of the police report, that additional criminal charges might be brought against Kipi. The State has stipulated that the prosecutor knew of the pending burglary and terroristi
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