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08-Mar-2018 22:09

But as is so often the case with popular music, there's nothing like the real thing. J., NAKAYAMA, and Mc KENNA, JJ.; with ACOBA, J., dissenting, with whom DUFFY, J., joins. At trial, the first 6 counts were supported only by the testimony of the complaining witness. The remaining 19 counts were supported by 19 exhibits containing either audio recordings of the alleged voicemails or photographs of the alleged text messages. Absent such an instruction, Pecpec argues, the jurors may not have unanimously agreed that Pecpec committed the conduct described in each of the 19 counts. The jury was presented with 19 exhibits, and convicted Pecpec on 19 counts that corresponded to the dates on which the conduct in those exhibits allegedly occurred.The jury found Pecpec guilty on each of these 19 counts, and the family court sentenced Pecpec to a one-year jail term on each count, to run concurrently, with the exception of Count 13 for which the sentence was to run consecutive to the remaining counts. Pecpec also argues that his consecutive sentence on Count 13 violates his constitutional rights to due process, equal protection, and to be free from cruel and unusual punishment because it may have been based on a verdict that was not unanimous. Mundon, 121 Hawai‘i 339, 355, 219 P.3d 1126, 1142 (2009), the family court was required to give a specific unanimity instruction in the circumstances of the instant case. The presentation of the evidence, jury instructions, and arguments of both counsel made clear that there was a one-to-one relationship between counts and exhibits. Pecpec argues that these convictions were obtained in violation of his right to a unanimous verdict because the jury was not specifically instructed that it was required to unanimously agree to the specific act that supported each count.

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Kaneshiro, Prosecuting Attorney, and Donn Fudo, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee. Although the jury instructions identified each count by the date on which the alleged violation occurred and identified whether the violation was made by way of a voicemail or text message, they did not identify the time of the violation or the exhibit to which each count corresponded.

The Order prohibited Pecpec from, inter alia, contacting CW by phone or text message, but allowed for “LIMITED contact ․ for the purpose of” “attending courtroom proceedings” and “service of legal documents by mail or through a process server.”CW testified that Pecpec left her six voicemails on her office telephone on October 19, 2009. If this is the way you're going to raise the kids, don't involve me with them, okay.

CW could not remember the exact times of the voicemails, but stated that they were left “from in the morning, on” “during business hours.” CW could not remember the exact content of the voicemails but testified that the voicemails discussed “various, different things[,]” such as speculating that she was not answering her work phone because she had been out late and that their oldest son “really wasn't his and that's probably why his son wanted to change his last name.” CW recorded the voicemails but did not provide the recordings to the prosecutor because she “wrote down whatever was said on the message .”CW testified that she also received voicemails from Pecpec on October 22, November 6, November 7 and November 8, 2009. Why don't you go find a father that you (indiscernible) with them.․[Exhibit 14, November 7, 2009:] I'm sorry to say this, but you turned off your fucking phone on me, on nobody else, yeah.

Pecpec challenges his convictions on Counts 8–15, which refer to 8 voicemails on November 6, 2009; Counts 18–22, which refer to five text messages on November 6, 2009; and Counts 23–25, which refer to three text messages on November 7, 2009.

However, we hold that the family court's error did not contribute to Pecpec's convictions, because there is no “genuine possibility” that the jurors could have found Pecpec guilty without unanimously concluding that he committed each of the acts presented in the State's exhibits. Thus, there is no reasonable possibility that Pecpec was convicted on less than a unanimous verdict.

Kaneshiro, Prosecuting Attorney, and Donn Fudo, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee. Although the jury instructions identified each count by the date on which the alleged violation occurred and identified whether the violation was made by way of a voicemail or text message, they did not identify the time of the violation or the exhibit to which each count corresponded.The Order prohibited Pecpec from, inter alia, contacting CW by phone or text message, but allowed for “LIMITED contact ․ for the purpose of” “attending courtroom proceedings” and “service of legal documents by mail or through a process server.”CW testified that Pecpec left her six voicemails on her office telephone on October 19, 2009. If this is the way you're going to raise the kids, don't involve me with them, okay.CW could not remember the exact times of the voicemails, but stated that they were left “from in the morning, on” “during business hours.” CW could not remember the exact content of the voicemails but testified that the voicemails discussed “various, different things[,]” such as speculating that she was not answering her work phone because she had been out late and that their oldest son “really wasn't his and that's probably why his son wanted to change his last name.” CW recorded the voicemails but did not provide the recordings to the prosecutor because she “wrote down whatever was said on the message .”CW testified that she also received voicemails from Pecpec on October 22, November 6, November 7 and November 8, 2009. Why don't you go find a father that you (indiscernible) with them.․[Exhibit 14, November 7, 2009:] I'm sorry to say this, but you turned off your fucking phone on me, on nobody else, yeah. Pecpec challenges his convictions on Counts 8–15, which refer to 8 voicemails on November 6, 2009; Counts 18–22, which refer to five text messages on November 6, 2009; and Counts 23–25, which refer to three text messages on November 7, 2009.However, we hold that the family court's error did not contribute to Pecpec's convictions, because there is no “genuine possibility” that the jurors could have found Pecpec guilty without unanimously concluding that he committed each of the acts presented in the State's exhibits. Thus, there is no reasonable possibility that Pecpec was convicted on less than a unanimous verdict.And for that reason Keoki at least deserves some credit for his intentions.