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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-AUG-2026
07:51 AM
Dkt. 76 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
MICHAEL AKAU, also known as
MICHAEL JACOB AKAU, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Gluck, JJ.)
Defendant-Appellant Michael Akau, also known as
Michael Jacob Akau (Akau), appeals from the Circuit Court of the
First Circuit's (Circuit Court) 1 December 12, 2023 "Judgment of
Conviction and Sentence" (Judgment), in which Akau was found
guilty of Robbery in the Second Degree following a jury trial. 2
On appeal, Akau challenges the Circuit Court's jury
instructions, alleges prosecutorial misconduct, and contends
1 The Honorable James S. Kawashima presided.
2 The Circuit Court entered a "Free Standing Order of Restitution" on January 21, 2025, and Akau filed a timely notice of appeal thereafter.
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that the Circuit Court erred by waiving his presence at a
restitution hearing.
Upon careful review of the record on appeal and the
briefs submitted, and having given due consideration to the
arguments advanced and the issues raised, we vacate and remand
due to erroneous jury instructions.
The relevant background facts are these. A jury trial
was held on August 24-25, 2023. Steven Andrews (Andrews)
testified that on November 23, 2022, he was sitting outside of
7-Eleven with a blue Walmart bag that contained a library book,
cigarettes, and some change, when Akau walked by, bent over, and
"grabbed [his] things." Andrews "grabbed the bag back," Akau
gripped the bag tighter, and the two struggled for around 30
seconds. Andrews attempted to hit Akau to make him let go of
the bag, at which point the two began fighting. Andrews
testified that he then punched Akau in the face, after which
Akau punched Andrews twice and kneed him in the back. Andrews
left the scene to return to his residence at Weinberg Hale, and
observed Akau with the bag in his (Akau's) hand. Andrews later
received his belongings back from responding officers, but
testified that "a little bit of money [was] missing" and he
could not recall if he got the cigarettes back.
Honolulu Police Department (HPD) Officer Daniel Wolf
(Officer Wolf) testified that on November 23, 2022, he was
dispatched to an "assault or a robbery type case" at Weinberg
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Hale. Andrews reported to Officer Wolf that his property was
taken at 7-Eleven down the road. Officer Wolf found Andrews's
Walmart bag "tucked away into a corner" at the 7-Eleven.
Officer Wolf reviewed the surveillance footage from 7-Eleven,
but testified that he could not determine whether Akau took
Andrews's belongings. 3
Akau testified that on November 23, 2022, he was
"panhandling" at 7-Eleven. Akau saw Andrews, whom he seen
previously at Weinberg Hale and 7-Eleven, and he asked Andrews
for a cigarette. Akau testified that Andrews then punched him
in the mouth, and they began fighting. When the fighting
stopped, Andrews left, and Akau sat in the corner where Andrews
was initially sitting. Akau observed a blue tote bag "off in
the corner[,]" but denied grabbing the bag from Andrews at any
point while fighting and denied taking any items from the bag.
Akau testified that his friend then came over and gave him a
cigarette.
The Circuit Court instructed the jury on Robbery in
the Second Degree, use of force, as follows:
Robbery in the Second Degree, use of force. As to
the first alternative, a person commits the offense of
Robbery in the Second Degree, use of force, if in the
course of committing theft he uses force against the person
of anyone present with the -- with intent to overcome the
person's physical resistance, or physical power of
resistance.
There are two material elements to the offense of
Robbery in the Second Degree, use of force, each of which
3 Although the surveillance video is listed in the record on appeal, the video itself was not available for this court to review.
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the prosecution must prove beyond a reasonable doubt. The
two elements are:
1. That on or about November 23rd, 2022, in the City
and County of Honolulu, state -- the defendant, Michael
Akau, was in the course of committing theft; and
2. That while doing so the defendant, Michael Akau,
used force against the person of Steven Kermit Andrews, a
person who was present, with intent to overcome Steven
Kermit Andrews's physical resistance or physical power of
resistance.
(Emphases added.) The Circuit Court did not provide the jury
with the statutory definition of "theft" (from Hawaiʻi Revised
Statutes (HRS) § 708-830) when instructing the jury on Robbery
in the Second Degree. 4
4 The Circuit Court did, however, define the following terms:
Control over the property means exercise of the --the exercise of dominion over the property, and includes
but is not limited to taking, carrying away, or possessing
the property, or selling, conveying, or transferring title
to or an interest in the property.
Deprive means A, to withhold property or cause it to
be withheld from a person permanently, or for so extended a
period, or under such circumstance, that a significant
portion of its economic value or the use -- or the use and
benefit thereof is lost to him; or
B, to dispose of the property, so as to make it
unlikely the owner will recover it; or
C, to retain the property with the intent to restore
it to the owner only if the owner purchases or leases it
back, or pays a reward or other compensation for its
return; or
D, to sell, give, pledge or otherwise transfer any
interest in the property; or
E, to subject the property to a claim of a person
other than the owner.
Obtain means, when used in relation to property, to
bring about a transfer of possession or other interest,
whether to the obtainer or to another.
Unauthorized control over property means control over
property of another which is not authorized by the owner.
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Thereafter, the Circuit Court instructed the jury that if it
found Akau not guilty of Robbery in the Second Degree, it would
determine whether Akau was guilty of Theft in the Fourth Degree,
as follows:
A person commits the offense of Theft in the Fourth
Degree if he obtains or exerts unauthorized control over
the property of another, the value of which does not exceed
250 dollars, with intent to deprive the person of the
property.
There are four material elements of the
offense of Theft in the Fourth Degree, each of which the
prosecution must prove beyond a reasonable doubt.
These four elements are:
1. That on or about November 23rd, 2022, in the City
and County of Honolulu, the State of Hawaiʻi, the defendant,
Michael Akau, obtained or exerted unauthorized control over
the property of Steven Kermit Andrews; and
2. That the defendant, Michael Akau, did so with the
intent to deprive Steven Kermit Andrews of the property;
and
3. That the defendant, Michael Akau, was aware or
believed the property had value; and
4. The property had value.
In closing argument, the State reiterated the
"depriving" definition, as follows:
You've learned about what depriving is. Depriving is
to withhold the property, permanently or for so extended a
period that a significant portion of it, or its value, is
lost. You've also learned that deprived can mean to
dispose of it, to make it unlikely that the person, Mr.
Andrews, could recover it.
You've learned that it means to retain the property,
with the intent to restore it only if the owner purchases
it or leases it back. Depriving also means to sell or
otherwise transfer the interest of the property to someone
else. It's not yours. To subject the property to the
claim of a person other than the owner, in this case Mr.
Andrews.
The State argued that Akau approached Andrews with the goal "to
take whatever it was that Mr. Andrews had[,]" and that Akau then
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punched and kneed Andrews in the back causing Andrews to flee
the 7-Eleven parking lot and leave his belongings behind. The
State argued that Andrews observed Akau with the "blue tote in
his hand" while fleeing. After Andrews left, the State
contended, the surveillance video showed Akau smoking a
cigarette, which was from Andrews's bag.
In its rebuttal argument to the jury, the State argued
that "[i]t didn't have to be the defendant who took anything
from the wallet, or took any cigarettes from the bag, under the
law." The State contended that because of Akau's actions,
"Andrews was forced to abandon his belongings," and it did not
matter "if the defendant took the cigarettes, or the book, . . .
or the cash[.]" Defense counsel objected for "misstate[ment of]
the law." The Circuit Court overruled the objection.
The jury found Akau guilty as charged of Robbery in the
Second Degree, use of force. Akau was sentenced to ten years of
imprisonment. Akau timely appealed.
Standard of review.
When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial. However, error is not to be
viewed in isolation and considered purely in the abstract.
It must be examined in the light of the entire proceedings
and given the effect which the whole record shows it to be
entitled. In that context, the real question becomes
whether there is a reasonable possibility that error might
have contributed to conviction. If there is such a
reasonable possibility in a criminal case, then the error
is not harmless beyond a reasonable doubt, and the judgment of
conviction on which it may have been based must be set aside.
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State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006)
(quoting State v. Gonsalves, 108 Hawai‘i 289, 292–93, 119 P.3d
597, 600–01 (2005)) (brackets omitted). "Jury instructions to
which no objection was made at trial will be reviewed for plain
error." State v. Brown, 157 Hawaiʻi 354, 367, 577 P.3d 1045,
1058 (2025).
Akau argues that the Circuit Court erred by
"failing to define theft under HRS § 708-830(1)" as including
the “mens rea for element 1 of Robbery.” Akau contends that
“[w]ithout being informed that element 1 requires an intent to
deprive another of property, a mens rea, the jury could have
believed that the State was not required to prove a mens rea at
all for that first element.” The State, on the other hand,
argues that because the Circuit Court “gave an instruction on
Theft in the Fourth Degree as a lesser included offense of
Robbery in the Second Degree[,]” “the jury was in fact provided
with a definition of ‘theft’ and the mental state associated
with ‘theft.’”
HRS § 701-114 (2014), entitled "Proof beyond a
reasonable doubt," provides:
(1) Except as otherwise provided in section 701-115,
no person may be convicted of an offense unless the
following are proved beyond a reasonable doubt:
(a) Each element of the offense;
(b) The state of mind required to establish each
element of the offense;
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(2) In the absence of the proof required by
subsection (1), the innocence of the defendant is presumed.
(Emphasis added.) HRS § 702-204 (2014), entitled "State of mind
required," provides: "Except as provided in section 702-212, a
person is not guilty of an offense unless the person acted
intentionally, knowingly, recklessly, or negligently, as the law
specifies, with respect to each element of the offense."
(Emphasis added.)
Akau was found guilty of HRS § 708-841(1)(a) (2014),
which provides that a person commits Robbery in the Second
Degree if:
in the course of committing theft . . . :
(a) The person uses force against the person of
anyone present with the intent to overcome that
person's physical resistance or physical power of
resistance;
(Emphasis added.) HRS § 708-830 (2014) provides, inter alia,
that a person commits theft if the person "obtains or exerts
unauthorized control over the property of another with intent to
deprive the other of the property." (Emphasis added.) Thus, to
find Akau guilty of Robbery in the Second Degree, the jury was
required to find that, in addition to force, Akau acted "with
intent" to "deprive" Andrews of his property. See id.; HRS §§
701-114 and 702-204; see also State v. Cordeiro, 99 Hawaiʻi 390,
407, 56 P.3d 692, 709 (2002) (noting that the Circuit Court
instructed the jury on the "statutory definition[]" of "theft"
in a Robbery in the First Degree case).
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Here, the Circuit Court instructed the jury as to
Robbery in the Second Degree without providing the definition of
"theft." The Circuit Court then provided the definitions of
"Control over the property," "Deprive," "Obtain," and
"Unauthorized control over property," all terms derived from the
statutory definition of "theft." As Akau argues, without the
"theft" definition, the jury could have been misled "that if
Akau somehow caused the property to be withheld from the owner
without any intent to do so, . . . then he could still be guilty
of robbery." Without the proper instruction of "theft," a jury
could have found that Akau's fight with Andrews caused Andrews
to abandon his property. Therefore, it is unclear whether the
jury understood that Akau had to have the "intent to deprive"
Andrews of his property during the fight. HRS § 708-830. Thus,
the Circuit Court's jury instructions were erroneous. See
Nichols, 111 Hawai‘i at 334, 141 P.3d at 981.
The Circuit Court's erroneous jury instructions were
presumptively harmful. Id. Based on the record, there is a
reasonable possibility that the erroneous instruction
contributed to Akau's conviction, and this error was not
harmless beyond a reasonable doubt. Accordingly, we vacate and
remand, and we need not address Akau's remaining arguments.
For the foregoing reasons, we vacate the Circuit Court
of the First Circuit's December 12, 2023 "Judgment of Conviction
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and Sentence," and remand for proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai‘i, August 28, 2026.
On the briefs:
Audrey Stanley, /s/ Karen T. Nakasone for Defendant-Appellant. Chief Judge
Robert T. Nakatsuji, /s/ Katherine G. Leonard Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu
for Plaintiff-Appellee. /s/ Daniel M. Gluck
Associate Judge
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