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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). [FN1]
FN1. Hawaii Revised Statutes (HRS) § 586-4(d) (Supp.2002) provides now, as it did when Yi was arrested, as follows:
(d) When a temporary restraining order is granted and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor. A person convicted under this section 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 section as follows:
(1) For a first conviction for violation of the temporary restraining
order, the person shall serve a mandatory minimum jail sentence of forty-eight hours and be fined not less than $150 nor more than $500; 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; and
(2) For the second and any subsequent conviction for violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of thirty days and be fined not less than $250 nor more than $1,000; 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.
Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.
The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1) and (2), upon condition that the defendant remain alcohol[-] and drug-free, conviction-free, or complete court-ordered assessments or intervention. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor.
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, [FN2] who was thirty-four years old, had been born in Korea, and had lived in Hawai'i 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, [an
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