No. 28411 – Wednesday, April 14, 2010 at 10:15 a.m.

STATE OF HAWAI`I, Plaintiff-Appellee, v. JAN MOXLEY, Defendant-Appellant.

Attorney(s) for Defendant-Appellant
Earle A. Partington

Attorney(s) for Plaintiff-Appellee
Jay T. Kimura, Prosecuting Attorney and Jack N. Matsukawa, Deputy Prosecuting Attorney

COURT:    Nakamura, CJ.; Leonard, J. and Judge Richard Pollack to sit in place of Foley and Fujise, JJ., both recused and due to vacancies.

SPECIAL NOTE:    The above argument will take place in the Supreme Court courtroom on the Second Floor of Aliʻiolani Hale, 417 South King Street, Honolulu, Hawaiʻi.

[ Listen to the entire audio recording in mp3 format ]

Brief description:

Defendant-Appellant Jan Moxley appeals from the Circuit Court of the Third Circuit’s January 29, 2007 Judgment of Conviction and Probation Sentence, nunc pro tunc to January 23, 2007, convicting him of:  (1) Criminal Property Damage in the First Degree; (2) Criminal Property Damage in the Fourth Degree; (3) Assault in the Third Degree; and (4) Unauthorized Entry into Motor Vehicle.  Appellant argues that the Circuit Court erred in failing to grant his motion for a mistrial and motion for reconsideration of his motion for mistrial.  Appellant sought a mistrial based on the prosecutor’s alleged serious misconduct during his opening statement, wherein the prosecutor said that Appellant “had an annoying habit of getting high on marijuana.”  The State concedes that this statement may have been improper, but argues that, under the circumstances of this case, it was harmless beyond a reasonable doubt.  Appellant also argues that the Circuit Court erred in instructing the jury that it could convict of both Count 1 alleging Criminal Property Damage in the First Degree and Count 2 alleging Criminal Property Damage in the Second Degree (or any included offense therein) and in entering a Judgment of Conviction as to Count 1 and the included offense of Criminal Property Damage in the Fourth Degree as to Count 2 when both counts arise out of the same conduct.  The State concedes that a merger instruction should have been given, and due to its absence, Count 2 should be vacated.