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State v. Pesentheiner3/5/2001
ce is insufficient by itself to support a finding of intent. All that is left is a waving of the arms that was, at most and as the court apparently found, reckless.
Based on the foregoing, we must concede that the court's ruling demonstrates its genuine confusion as to the intent element of the harassment charge. In light of our considerable reservations, we would be remiss in allowing Pesentheiner's conviction to stand.
D. What Is To Be Done?
Witn respect to fashioning the appropriate remedy, Pesentheiner urges us to reverse his conviction or, in the alternative, to vacate the district court's judgment and remand the case for retrial.
We are aware that a criminal defendant is protected from being retried for an offense whenever a jury "impliedly acquits" him of that offense by finding him guilty of a lesser included offense. See. e.g., Whiting v. State, 88 Hawaii 356, 360-61, 966 P.2d 1082, 1086-87 (1998); Price v. Georgia, 398 U.S. 323, 329 (1970); Green v. United States, 355 U.S. 184, 190-91 (1957).
However, any analogous implication in this case that the court made a finding of fact inconsistent with guilt must founder. The court's erroneous assumption that recklessness was sufficient for conviction rendered it unnecessary, under that assumption, to go further in considering the evidence than a finding that Pesentheiner recklessly waved his arms. Had the court applied the correct mens rea standard in its consideration of the evidence, it would have been further required to assess the weight and credibility of Officer Takahashi's description of the actus reus. As we have observed, the court's ruling is devoid of any mention of the issue. Under these circumstances, we cannot say that the court made a definitive finding of fact, invariably inconsistent with guilt, that might bar retrial.
Instead, having concluded that sufficient evidence was adduced at trial to sustain the charge, we apply the usual rule for trial error:
eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. State v. Hamala, 73 Haw. 289, 293, 834 P.2d 275, 277 (1992) (brackets and typesetting in the original).
IV. Conclusion.
For the foregoing reasons, the May 12, 1999 judgment of the district court is vacated and the case is remanded for retrial.
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