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State v. Libero12/31/2003
tted).
Libero contends the State failed to establish a prima facie case of separate conduct sufficient to warrant the charges of assault and attempted murder. He argues that since the evidence did not establish that these incidents were the result of separate conduct, he was entitled to jury instructions on merger.
While HRS § 701-109(1)(e) (1993) does prohibit multiple convictions if the actions of the defendant constitute an uninterrupted, continuing course of conduct, our review of the record indicates that the assault and attempted murder did not stem from an uninterrupted course of conduct. In Libero's statements to police he acknowledged that he initially struck Nancy with the kiawe branch because she refused his advances, thus supporting the assault charge. He checked to see if Nancy was still breathing and then removed the bottom half of her clothes to have sex with her. He decided not to have sex with her. Nancy then got up, and Libero struck her again and left her. Libero, in his recorded confession, admitted to striking Nancy only once more after removing her clothes; however, Dr. Rogers testified that the nature of her subsequent injuries indicated she was struck at least three times.
The second attack, after the attempt to have sex, is indicative of an attempt to kill and thereby supportive of the attempted murder charge. The State fulfilled its obligation to prove that Libero committed "separate offenses under the law" by showing that Libero at one point intended only to harm Nancy and at another point intended to cause her death. State v. Matias, 102 Hawaii 300, 305, 75 P.3d 1191, 1196 (2003). There was no plain error on the part of the circuit court in not giving the merger and unanimity instructions, which Libero argues on appeal should have been given.
Libero also asserts the jury instruction for the attempted sexual assault charge was incomplete because it did not follow Hawaii Criminal Pattern Jury Instruction (HAWJIC) 14.02 and "failed to provide the necessary element that 'Defendant was aware his conduct constituted strong compulsion.'" Libero did not make this objection to the circuit court. State's Instruction No. 24, as modified, read as follows:
In Count Three of the Indictment, the Defendant, JAMES LIBERO, is charged with the offense of Attempted Sexual Assault in the First Degree.
A person commits the offense of Attempted Sexual Assault in the First Degree if he intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his commission of Sexual Assault in the First Degree.
There are two material elements of the offense of Attempted Sexual 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 November 23, 1998, in the County of Maui, State of Hawaii, the Defendant, JAMES LIBERO, engaged in conduct which, under the circumstances as the Defendant believed them to be, was a substantial step in a course of conduct intended by the Defendant to culminate in the commission of Sexual Assault in the First Degree; and
2. That the Defendant engaged in such conduct intentionally.
Conduct shall not be considered a substantial step unless it is strongly corroborative of the Defendant's intent to commit Sexual Assault in the First Degree.
A person commits the offense of Sexual Assault in the First Degree if he knowingly subjects another person to an act of sexual penetration by strong compulsion.
Libero contends the second paragraph
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