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[T] State v. Yi1/20/2004
Defendant-Appellant Kyong Su Yi (Yi or Mr. Yi) appeals from the Judgment of Conviction and Sentence entered on December 3, 2001 by the Family Court of the First Circuit (the family court), Judge Steven S. Alm presiding, convicting Yi of, and sentencing him for, Violation of a Temporary Restraining Order (TRO), in violation of Hawaii Revised Statutes (HRS) § 586-4 (Supp. 2002).
Yi argues that:
(1) The evidence adduced at trial was insufficient to find him guilty of the offense of Violation of a TRO;
(2) The family court's jury instruction on the elements of Violation of a TRO was prejudicially insufficient and erroneous because the instruction failed to list "conduct" and "result" as separate elements of the offense, improperly included the state of mind as an element of the offense, and failed to specify that the state of mind applied to all elements of the offense;
(3) The family court unconstitutionally punished him for exercising his constitutional right to a jury trial and for an uncharged crime (perjury) when it sentenced him to serve a four-month jail term; and
(4) The family court abused its discretion when it sentenced him to a four-month jail term for a conviction that did not involve violence, physical injury, or property damage.
We affirm in part and vacate in part.
BACKGROUND
A. The TRO Against Yi
On June 4, 2001, the family court, Judge R. Mark Browning presiding, granted the request of Pom Sun Callahan (Pom) and issued an ex parte TRO against Pom's live-in boyfriend, Yi, who was thirty-four years old, had been born in Korea, and had lived in Hawaii since he was fourteen years old. Pom had indicated in her request for the ex parte TRO that in May 2001, Yi had "pushed or grabbed or shoved her, choked her, . . . also threatened to kill her." In issuing the order, the family court found that "there is probable cause to believe that a past act or acts of abuse have occurred, or that threats of abuse make it probable that acts of abuse by may be imminent."
B. The Trial
At the trial against Yi held on October 24, 2001, four witnesses testified.
1.
Pom testified that on the morning of June 14, 2001, she and Yi were sleeping in the bedroom of her apartment when the telephone rang. Patrick Callahan (Patrick), her son from a previous marriage, answered the call, which was from a police officer asking for Yi. According to Pom, Patrick brought the phone to Yi, but because Yi did not understand what the police officer was saying, Yi passed the phone to Pom. Pom testified that the police officer then asked her if Yi was in the apartment and she responded affirmatively.
Pom testified that she realized that the police officer was checking to be sure Yi was in before coming to serve Yi with the TRO papers. She did not want to be in the apartment when the police officer arrived, so she got up, closed the bedroom door, and left her apartment. On her way out of her apartment building, Pom noticed Honolulu Police Officer William Lu (Officer Lu or the officer) outside the "security doors" of the building. She let Officer Lu in, told him that Yi was up in her apartment, and then went to visit a friend in the apartment building next door.
Pom stated that about an hour later, she called her apartment. Patrick answered the phone and informed her that Yi and the police officer had just left the apartment. Pom remained at her friend's apartment for another hour and at about 11:00 a.m., decided to go back to her apartment. However, when she got to her apartment and saw Yi's shoes in front of the door, she back
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