Honolulu, Hawaii
                                                     , 1999

                                   RE:  S.B. No. 919
                                        S.D. 1

Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 1999
State of Hawaii


     Your Committee on Judiciary, to which was referred S.B. No.
919 entitled: 


begs leave to report as follows:

     The purpose of this bill, as received by your Committee, is

     (1)  Clarify that for the offense of robbery, it shall not
          be a defense that any person other than the defendant
          is aware of the theft or attempted theft;

     (2)  Clarify that if a person indicates by either assertion
          or conduct that the person is armed with a dangerous
          instrument, then the person has committed robbery in
          the first degree; and

     (3)  Clarify that the definition of "dangerous instrument"
          includes articles simulating items currently defined as
          dangerous instruments.

     Your Committee finds that S.B. No. 919 is intended to
overrule two recent Hawaii appellate decisions that have raised
issues regarding what is sufficient to constitute the offense of
robbery.  In State v. Mitsuda, 86 Haw. 37 (1997), the state
Supreme Court found that the offense of robbery required that the
victim or someone present be aware of the defendant's theft.  As
to the second case, State v. Ugalde, No. 21002 (Haw. App. Nov. 9,

                                   STAND. COM. REP. NO. 835
                                   Page 2

1998), which was subsequently reversed by memorandum opinion and
depublished, the state Intermediate Court of Appeals found that,
although the robber stated to the victim that he had a gun and
the victim saw an object covered by a sock-like cloth in the
robber's hand, this was not sufficient to prove that the robber
possessed a dangerous instrument.

     Your Committee believes that robbery requires awareness of
the theft because it is in essence a "forcible theft from the
person."  This differentiates robbery from a theft by stealth or
deception, such as shoplifting, pickpocketing, or embezelling.
If the victim is aware of the theft and the theft is from his or
her person, he or she has a heightened sense of danger.

     Your Committee agrees that it is a rare case where a
defendant is charged with a robbery offense when the victim of
the robbery is unaware of the theft.  Your Committee hesitates to
legislatively overrule a Supreme Court decision as to one
specific case with an unusual fact pattern.  Similarly, your
Committee is wary of treading into an issue as to which the
Supreme Court has already corrected a lower court holding and
reaffirmed well-settled doctrine.  The Supreme Court rejected the
Intermediate Court of Appeals decision in the Ugalde case and
decided that the existence of a dangerous instrument could be
circumstantially proven, as with any other material fact at issue
in a trial.  Your Committee believes that the definition of
"dangerous instrument" may be interpreted to include those
situations where a defendant says he has a gun, holds an object
which resembles a gun, and brandishes it as if it were a gun.

     Testimony in support of this measure was submitted by the
Department of the Prosecuting Attorney of the City and County of
Honolulu and the Honolulu Police Department.  Testimony in
opposition to this measure was submitted by the Office of the
Public Defender.

     Upon further consideration, your Committee has amended this
bill by deleting its substance and substituting therefor a
provision that includes within the definition of "dangerous
instrument" an animal.  Your Committee believes that a dangerous
animal, when used in furtherance of a theft, may be capable of
producing death or serious bodily injury.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of S.B. No.
919, as amended herein, and recommends that it pass Second
Reading in the form attached hereto as S.B. No. 919, S.D. 1, and
be placed on the calendar for Third Reading.

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                                   Page 3

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,

                                   AVERY B. CHUMBLEY, Co-Chair

                                   MATTHEW M. MATSUNAGA, Co-Chair