State v. Ahina, CAAP–13–0006008.

138 Hawai'i 138

377 P.3d 1056 (Table)

STATE of Hawai‘i, Plaintiff–Appellee

v.Ikaika AHINA, Defendant–Appellant.

No. CAAP–13–0006008.

Intermediate Court of Appeals of Hawai‘i.

May 31, 2016.

Ben C. Summit, on the briefs, for Defendant–Appellant.

Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, on the briefs, for Plaintiff–Appellee.

NAKAMURA, C.J., FUJISE and GINOZA, JJ.

SUMMARY DISPOSITION ORDER

Defendant–Appellant Ikaika Ahina (Ahina) appeals from the “Order Revoking Probation and Resentencing Defendant,” entered on December 5, 2013, by the Family Court of the Second Circuit (Family Court).¹

On March 28, 2012, pursuant to a plea agreement, Ahina pleaded no contest to one count of Violation of an Order for Protection, in violation of Hawaii Revised Statutes (HRS) § 586–11 (2006 and Supp.2015). Ahina was sentenced to probation for one year and two days of incarceration.

On December 5, 2013, after a hearing, the Family Court issued a written order revoking Ahina's probation and resentenced him to, inter alia, probation for one year with 60 days of incarceration as a special condition for failing to report to a probation officer as directed.

On appeal, Ahina claims the Family Court abused its discretion when it revoked his probation because there was insufficient evidence to demonstrate that he inexcusably failed to comply with a substantial requirement of probation. Specifically, Ahina argues that the Family Court erred by finding that he intentionally failed to comply with the requirement that he report to his Probation Officer as ordered. Ahina also argues that his actions were not meant to circumvent the court's probation order when the goals of sentencing are considered.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Ahina's point of error as follows and affirm.

The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.

HRS § 706–625(3) (2014).

The term “inexcusably” in HRS § 706–625(3) means a wilful and deliberate attempt to circumvent the order of the court. State v. Villiarimo, 132 Hawai‘i 209, 222, 320 P.3d 874, 887 (2014).

This standard requires both an intentional act on the part of the defendant (“willful”), and a deliberate attempt by him or her to circumvent the probation order, taking into consideration the significance of the defendant's action with respect to the court's order and goals of probation (“to circumvent the order of the court” ').

Id. (footnote omitted). Contrary to Ahina's claim, there was sufficient evidence that he acted intentionally and deliberately attempted to circumvent the probation order by violating the substantial condition of his probation that he “must report to a probation officer as directed by the court or the probation officer.”

The facts are not in dispute. After learning from a Criminal Justice Information Systems inquiry that Ahina had been arrested for intoxication on August 14, 2012 and for theft and promoting a detrimental drug on August 28, 2012, Ahina met with his Probation Officer on September 7, 2012 when they discussed the arrests and more frequent meetings. Probation Officer then gave Ahina an appointment slip for September 26. During a conversation with his Probation Officer, Ahina's tone indicated that he questioned why he needed to report to her. Ahina failed to report on September 26. His Probation Officer called him again and they agreed to another meeting. However, Ahina again failed to show up to that appointment. After his Probation Officer sent Ahina a letter, he called his Probation Officer, who agreed to a third meeting. The date and time was set based upon Ahina's availability because he was not working on the date of the appointment. However, Ahina again failed to report, failed to call his Probation Officer to inform her that he would not appear, and no other arrangement to report was made thereafter.

“Given the difficulty of proving the requisite state of mind by direct evidence[,] ... ‘proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the defendant's conduct is sufficient.” ’ State v. Stocker, 90 Hawai‘i 85, 92, 976 P.2d 399, 406 (1999) (citation and brackets omitted). “Thus, the mind of an alleged offender may be read from his acts, conduct and inferences fairly drawn from all the circumstances.” Id. (quoting State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536–37 (1982) ). Ahina failed to comply with the requirement that he report to his Probation Officer as directed by his...