State v. Patrick

── State v. Patrick ── Court: Hawaii Intermediate Court of Appeals Date: May 07, 2026 Category: General NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 07-MAY-2026 08:00 AM Dkt. 83 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee, v. JAMES EDWARD PATRICK, Defendant-Appellant. APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CASE NO. 3FFC-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, and Wadsworth and McCullen, JJ.) Defendant-Appellant James Edward Patrick (Patrick) appeals from the Judgment of Conviction and Probation Sentence (Judgment) entered on March 1, 2024, by the Family Court of the Third Circuit (Family Court).1/ Following a jury trial, Patrick was convicted of: (1) Felony Abuse of Family or Household Member, in violation of Hawaii Revised Statutes (HRS) § 709-906(1) and (10) (Count 1); (2) Attempted Felony Abuse of Family or Household Member, in violation of HRS § 705-500 and 709-906(1) and (9)(a) (Count 2); and (3) Abuse of Family or Household Member, in violation of HRS § 709-906(1) (Count 3). On appeal, Patrick contends that the Family Court erred: (1) in failing to instruct the jury on merger; (2) in failing to instruct the jury that Counts 2 and 3 were included offenses of Count 1; (3) in failing to conduct a hearing regarding the competency of the minor complaining witness (MCW) pursuant to Hawai#i Rules of Evidence (HRE) Rule 603.1; and (4) admitting a 911 call with the adult complaining witness's (CW) 1/ The Honorable Robert D.S. Kim presided.  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER statement without showing unavailability, in violation of Patrick's constitutional confrontation right.2/ After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Patrick's contentions as follows. (1) Patrick contends that the Family Court erred in failing to instruct the jury on merger as to Counts 1, 2 and 3. He argues that the conduct alleged in these counts "constitut[ed] one continuous episode," and the jury was required to determine whether there was "one intention, one general impulse, and one plan to commit the offenses[,]" under State v. Lavoie, 145 Hawai#i 409, 432, 453 P.3d 229, 252 (2019). HRS § 701–109 (2014) states, in relevant part: (1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. The defendant may not, however, be convicted of more than one offense if: . . . . (e) The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods of conduct constitute separate offenses. In Lavoie, the Hawai#i Supreme Court explained that "only one crime is committed when '(1) there is but one intention, one general impulse, and one plan, (2) the two offenses are part and parcel of a continuing and uninterrupted course of conduct, and (3) the law does not provide that specific periods of conduct constitute separate offenses.'" 145 Hawai#i at 431, 453 P.3d at 251 (quoting State