Charges, Plea Agreements, Etc.

 Pre-trial Identification

About a week after the Kobayashi burglary, Kobayashi was shown

photographic arrays that included Okumura and asked if he could
identify any of the perpetrators. Kobayashi did not identify anyone
because he did not feel confident accusing anyone based on a
photograph and did not want to make a mistake. Kobayashi was shown
a second photographic array on September 11, 1990, and again refused
to make an identification.

The following day, on September 12, 1990, a preliminary hearing

was held. During the hearing Kobayashi testified regarding the
facts and circumstances surrounding the burglary of his home.
When Kobayashi was asked if he could identify any perpetrator
in the courtroom, he looked around the courtroom for
approximately forty seconds before identifying Okumura. He
identified Okumura by name by reading his name off of his prison
uniform. He stated that he was 99% sure of the identification.
Okumura contends that his motion to suppress Kobayashi's pre-
trial identification should have been granted because the
identification procedure at the preliminary hearing was overly
suggestive.
Although the circuit court concluded that the procedure was not
unnecessarily suggestive and that the identification was
sufficiently reliable, the questions of suggestiveness and
reliability are questions of law that are freely reviewable on
appeal.
The circuit court's findings of fact relevant to whether the
procedure was unnecessarily suggestive include the following:
1. At the preliminary hearing, Mr. Kobayashi took a look around
the entire courtroom before identifying Defendant Okumura.
There were four people seated at the defense counsel's table as
well as others seated in the courtroom.
2. Defendant Okumura was dressed in his green Oahu Community
Correctional Center outfit and had his feet shackled. A sheriff was
also present in the courtroom.
3. When Mr. Kobayashi identified Defendant Okumura,
Defendant Okumura was seated next to his attorney, co-defendant
Kona and co-defendant Kona's attorney. They were all seated at a
table.
Okumura argues that two other "facts" not included in the circuit court's findings of
fact support his contention that the identification was impermissibly suggestive: (1)
Kobayashi identified him as "Mr. Okumura" by reading his name off of his prison
uniform; and (2) Kobayashi had been told before the preliminary hearing that the
burglar had been caught. The first fact is of little relevance. Kobayashi only read
the name tag after he had physically identified Okumura; there is no indication in
the record that Kobayashi knew Okumura or had been told that the suspect was
named Okumura. As to the second fact, no evidence regarding that fact was
presented at the motion to suppress the pre-trial identification. The fact apparently
only came to light during trial and Okumura did not renew his motion to suppress
after it was revealed. Therefore, we will not consider the second fact in reviewing
the circuit court's denial of the motion to suppress.

Based on our evaluation of the circumstances surrounding

Kobayashi's identification, particularly the fact that Okumura was
the only person in the courtroom wearing a prison uniform and
shackles, we conclude that the identification procedure was
suggestive and that the circuit court erred in ruling otherwise.
The factors to be considered in determining the reliability of an
identification include
[t]he opportunity of the witness to view the criminal at the time of
the crime, the witness'[s] degree of attention, the accuracy of the
witness'[s] prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of
time between the crime and confrontation.
The circuit court's findings of fact relevant to the reliability issue
include the following:
An evaluation of the relevant factors supports the conclusion that
the identification was sufficiently reliable for presentation to the
jury. Kobayashi had two opportunities to view the suspect, once
when the suspect's face was clearly lit with a flashlight.
Kobayashi's degree of attention was high as he was chasing the
suspects on the first viewing and looking for evidence on the
second. The level of certainty (99%) was high. The length of time
between the crime (July 18, 1990) and the confrontation
(September 12, 1990) is not particularly significant — it is neither
so short as to favor reliability nor too long to raise any serious
doubts. The only factor that would tend to indicate unreliability
would be the apparent inaccuracy of Kobayashi's description
given at the time of the burglary. Kobayashi described the
suspects as a latin-looking fellow, a caucasian, and a local-
looking, non-Asian. Okumura, on the other hand, is Japanese.
Although Kobayashi's description appears inaccurate, a
photograph of Okumura reveals that "latin-looking" was fairly
descriptive of Okumura's appearance at the time.
Based on the totality of the circumstances, the circuit court
properly concluded that Kobayashi's identification was
sufficiently reliable. "Thus, the weight of the identification
testimony and the credibility of the witnesses were for the jury to
determine. The defense counsel could cross-examine the
witnesses, point out any suggestibility in the identification
procedure, and present countervailing testimony such as
alibi." State v. Masaniai, 63 Haw. 354, 365, 628 P.2d 1018, 1026
(1981) (citations omitted). Therefore, the circuit court did not err
in denying the motion to suppress pre-trial identification.

 On September 21, 1990, Okumura and Kona were charged by

way of complaint with committing five burglaries including the
Kobayashi burglary. The four burglaries other than the
Kobayashi burglary are not at issue in the instant appeal.
 On January 23, 1991, Okumura was indicted for the Ihara,
Parsa, and Sano burglaries.
 On May 6, 1991, Kona entered into a plea agreement with the
prosecution whereby in exchange for his truthful testimony,
the prosecution would drop three charges of first degree
burglary, Kona would plead guilty to eight counts of second
degree burglary, and the prosecution would recommend a
sentence of five years probation with no jail time.
 Morgan also entered a plea agreement with the prosecution.
A plea agreement had initially been entered into on
 September 11, 1990, the day before the aforementioned
preliminary hearing, but because Morgan had not had an
attorney present, the agreement was renegotiated as of April
18, 1991. Under the terms of the second agreement, in
exchange for Morgan's testimony, the prosecution would drop
six burglary charges and would not prosecute Morgan for any
of the burglaries involved in the instant case, Morgan would
plead guilty to seven counts of second degree burglary, and
the prosecution would recommend a five year jail sentence
with a two year presentence credit.
 On May 15, 1991, Okumura filed a Motion to Suppress
Kobayashi's pre-trial identification. On June 17, 1991, a hearing
on Okumura's motion was held. The court denied the motion,
finding that the identification was not impermissibly suggestive
and that it was reliable.
 In the meantime, on May 17, 1991, an amended indictment
was filed charging Okumura, Mata, and Geffken with
conspiracy to commit burglary in the first degree. The
indictment alleged numerous overt acts related to the Parsa,
Ihara, Sano, and Kobayashi burglaries.
 Prior to trial, the prosecution moved to nolle prosequi the
Parsa burglary charge against Okumura. The only charges
remaining for trial were the Ihara, Kobayashi, and Sano
burglary charges against Okumura and the conspiracy charges
against both Appellants
The Trial
 Voir Dire
During voir dire it was revealed that there had been a newscast
concerning the Appellants and their alleged involvement in a
burglary other than those charged. Prospective juror Christopher
Ako, however, was subsequently briefly questioned concerning
the newscast in the presence of the jury without any objection.
Later, the Appellants requested that prospective juror Lisa Ann
Yamashiro be voir dired at the bench after she indicated that she
might not be able to be fair after having seen the newscast. The
court denied the request. Yamashiro was then questioned in front
of the jury and described what she had seen in the newscast and
the impact that it had upon her. Yamashiro was subsequently
excused for cause.
"A fair trial by an impartial jury is guaranteed to the criminally
accused by both the sixth amendment of the United States
Constitution and article I, § 14 of the Hawaii Constitution.
Inherent in this requirement is that the jury be free from outside
influences."
In the instant case, there are two outside influences to consider.
The first is the newscast itself. The second is Yamashiro's account
of the newscast and the effect that it had on her that was given in
the presence of the jury panel.
With respect to the newscast itself, all of the prospective jurors
who saw the newscast were questioned and either excused or
passed for cause. Thus, any argument that the jury was tainted by
the newscast itself is without merit.
On the other hand, by requiring the questioning of Yamashiro
regarding the newscast to take place in the presence of all of the
other prospective jurors, the court risked tainting the entire jury
panel. The Appellants contend that the jury panel was in fact
tainted by the questioning of Yamashiro. In essence, this is a
claim that the questioning of Yamashiro constituted an "outside
influence" that tainted the jury.
In the instant case, after the questioning of Yamashiro, which the
Appellants now contend tainted the jury, neither Mata nor
Okumura asked the court to excuse the remaining prospective
jurors or examine them to determine whether they had been
prejudiced by the questioning. Thus, the circuit court was never
called upon to make any findings as to whether the questioning of
Yamashiro was an outside influence that reached the level of
substantial prejudice. We must therefore make an independent
examination of what Yamashiro said in the presence of the
remaining jurors and determine whether it was substantially
prejudicial.
Yamashiro's opinion as to their culpability was entirely equivocal,
we cannot conclude that Yamashiro's statements were
"substantially prejudicial." Moreover, we have examined the three
days of voir dire that preceded the questioning of Yamashiro and
are confident that "[a]lthough the trial judge did not allow
questioning of [Yamashiro] out of the presence of the others, the
record of the voir dire hearing indicates, we think, that the jury
selected was one which could consider the case with
impartiality."

 Polygraph Evidence
During cross-examination of Kona, Kona mentioned that the
police had given him a polygraph test. The Appellants did not
immediately object but later made a motion for mistrial on the
ground that the prosecution had violated the discovery rules by
failing to disclose the polygraph results. The court denied the
motion for mistrial. The Appellants then made a motion to compel
discovery of the polygraph results. This motion was also denied.
Mata next argues that the prosecution violated Hawaii Rules of
Penal Procedure (HRPP) Rule 16(b)(1)(iii) (1983) when it failed
to disclose Kona's polygraph examination results and that the trial
court therefore erred when it failed to remedy the violation by
either granting his motion for mistrial or his motion to compel
discovery of the polygraph results.
At the time this case was tried, HRPP Rule 16(b)(1)(iii) required
the disclosure, upon request, of:
In 1993, HRPP Rule 16 was amended so that a request by a defendant was not
required to initiate the prosecution's duty to disclose.

any reports or statements of experts, which were made in

connection with the particular case or which the prosecutor
intends to introduce, or which are material to the preparation of
the defense and are specifically designated in writing by defense
counsel, including results of physical or mental examinations and
of scientific tests, experiments, or comparisons.
Mata essentially contends that a polygraph examination is a
"scientific test, experiment, or comparison" within the meaning
of HRPP Rule 16(b)(1)(iii), and that the results of the polygraph
examination taken by Kona should therefore have been disclosed
by the prosecution pursuant to Mata's request. We disagree.
Even assuming that a polygraph examination is a "scientific test"
within the meaning of HRPP Rule 16(b)(1)(iii), we do not believe
that the prosecution would be required to disclose the results
thereof. "Rule 16(b)(iii) . . . give[s a defendant] a right to
discovery conditioned on the materiality of the item to the
preparation of the defense.

The relationship between the potential admissibility of evidence

and the prosecution's duty to disclose is similarly illustrated
in State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987).
In Estrada, we considered the prosecution's duty to disclose two
items: (1) a Honolulu Police Department Internal Affairs Division
(IAD) file on a police officer whom the defendant was accused of
attempting to murder; and (2) certain testing materials used by a
psychologist who had evaluated both the defendant and the
alleged victim and would be testifying for the prosecution. 69
Haw. at 216-218, 738 P.2d at 821-22. We held that the defendant
was entitled to discovery of the IAD file because it contained
evidence of prior bad acts of the alleged victim that would be
potentially admissible under Hawaii Rules of Evidence (HRE) Rule
404(b). Id. at 217, 738 P.2d at 822. On the other hand, we held
that the defendant was not entitled to discovery of the
psychologist's testing materials because the materials were
"neither relevant nor admissible," and we "fail[ed] to discern
what discoverable evidence could have been obtained"
therefrom. Id. at 218, 738 P.2d at 822.

In the instant case, the issue is whether the prosecution had a

duty to disclose the results of Kona's polygraph examination.
According to well-established precedent in this jurisdiction,
polygraph results are not admissible at trial whether offered by
the prosecution or the defense, State v. Antone, 62 Haw. 346,
357, 615 P.2d 101, 109 (1980); State v. Chang, 46 Haw. 22,
31, 374 P.2d 5, 11 (1962), and we see no way in which the
polygraph examination results could have been material to the
preparation of the defense. For these reasons, in Ballard v.
Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838
(1966), the Supreme Court of California upheld a trial court's
denial of a defendant's specific request for disclosure of the
results of a polygraph examination that a prosecution witness
had taken. The court stated:
At trial, testimony regarding the polygraph examination was not intentionally
elicited by either the prosecution or the defense but was fortuitously mentioned
during Mata's cross-examination of Kona.

Defense counsel failed to offer any tenable reason to the trial

court why he should be given the results; moreover, we cannot
conceive of their pertinence to defendant's case. Not only is
evidence of polygraph tests inadmissible, but the results of the
test would neither lead to any additional evidence nor aid
petitioner in preparation for trial.

Therefore, the prosecution did not violate HRPP Rule

16(b)(1)(iii) when it did not disclose the results of Kona's
polygraph examination to Mata. Because the prosecution was
not obligated to disclose the polygraph examination results,
Mata's argument that the trial court erred when it failed to
remedy the alleged HRPP Rule 16 violation is without merit.
 Fukuda's testimony
Following an objection to all testimony from Fukuda on hearsay
grounds, the trial court ruled that it would allow Fukuda to
identify pictures of the Ihara residence and to testify as to what he
knew about the Iharas, that Mata had an office at the Ihara home,
that he had reported the burglary, and that he had seen no signs of
forced entry. Fukuda subsequently testified within the parameters
set by the court and was cross-examined by both defense
attorneys.
The Appellants argue that Fukuda's testimony should not have
been admitted because it was based on hearsay from the Iharas.
Hearsay is defined under Hawaii Rules of Evidence (HRE) Rule
801 as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." Because Fukuda did not testify
regarding any statements made by the Iharas, there was no direct
hearsay testimony.
The rule of evidence requiring witnesses to have personal
knowledge is HRE Rule 602, which states in pertinent part that
"[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter." According to the commentary
to HRE Rule 602, "`[p]ersonal knowledge' for purposes of this
rule means that the witness perceived the event about which he [or
she] testifies and that he [or she] has a present recollection of that
perception."
In the instant case, all of the relevant portions of Fukuda's
testimony were based on his own perception. Therefore, there was
no HRE Rule 602 violation and the circuit court did not err in
admitting Fukuda's testimony.
The only portion of Fukuda's testimony that may not have been based on his own
perception was his testimony that Mrs. Ihara lived in Japan; there is no indication
in the record that Fukuda personally perceived Mrs. Ihara living in Japan. Whether
or not Mrs. Ihara lived in Japan, however, was irrelevant to the issue of the
Appellants' guilt. Therefore, the admission of that testimony was completely
harmless.

 Cross-Examination of Morgan
While Mata's attorney was cross-examining Morgan regarding his
plea agreement and numerous past burglaries, which may or may
not have been encompassed therein, the prosecuting attorney
objected to the line of questioning. The court sustained the
objection and outlined parameters of questioning that would be
allowed. Within the court's limitations, defense counsel was
allowed to extensively question Morgan regarding his criminal
background and the plea agreement.
Mata next argues that his constitutional right to confront witnesses
was violated when the circuit court limited his cross-examination
of Morgan.
Article I, section 14 of the Hawaii Constitution and the sixth
amendment to the United States Constitution guarantee criminal
defendants the right to be confronted with witnesses against them.
"[I]mplicit in [a] defendant's right to confront witnesses against
him, is his right to cross-examine and to impeach the confronted
witness." State v. Napeahi, 57 Haw. 365, 372-373, 556 P.2d 569,
574 (1976). However, "[t]he right to confront and to cross-
examine is not absolute and may, in appropriate cases, bow to
accommodate other legitimate interests in the trial process." Thus,
Mata had a right to cross-examine Morgan, but the scope of that
cross-examination could be limited in the exercise of the circuit
court's discretion.
The cross-examination at issue concerned Morgan's criminal
history and the scope of a plea agreement between the prosecution
and Morgan, especially with respect to several burglaries that
Morgan may have been involved in that were not specifically
mentioned in the plea agreement.
The only limitation imposed by the circuit court was that Mata
was not allowed to ask Morgan whether he (Morgan) had given
information to Detective Tavares regarding a few specific
burglaries. Under these circumstances, we hold that Mata
adequately raised the issue of Morgan's possible bias. Cf. State v.
Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987) (holding
that any error in not allowing defendant to cross-examine witness
to reveal possible bias "was harmless because the bias was
brought out"). Therefore, the circuit court's limitation of the cross-
examination of Morgan did not violate Mata's right to confront
witnesses against him.

 Videotape Evidence
While being cross-examined, HPD Detective Craig Tavares
claimed that Okumura had offered to implicate a police officer
in the burglaries and that Okumura's offer had been recorded on
videotape. Because the Appellants had not been given the
videotape, the court ordered Detective Tavares to speak with
HPD Detective William Chur to find out where the videotape
was located. According to Detective Chur, the videotape was
inaudible and had been thrown away. The Appellants moved
for a mistrial on the ground that the prosecution had violated
the discovery rules by failing to disclose the videotape of
Okumura's statements. The court denied the motion but allowed
the Appellants to cross-examine Detective Tavares in the
presence of the jury about the circumstances surrounding the
alleged videotape and the reasons why it was no longer
available.
At the time this case was tried, HRPP Rule 16(b)(1)(ii)
(1983) required the prosecution to disclose, upon request, any
written or recorded statements and the substance of any oral
statements made by the defendant, or made by a co-defendant if
intended to be used in a joint trial, together with the names and
last known addresses of persons who witnessed the making of
such statements.
Mata contends that the videotape of Okumura's interview was a
recorded statement of a co-defendant that should have been
disclosed pursuant to this rule. The record indicates, however,
that the prosecution did not intend to use the statement in the
trial; rather, the statement was fortuitously revealed when
Okumura's attorney was cross-examining Officer Tavares.
Under the plain language of the rule, when statements of a co-
defendant are at issue, only those statements that the
prosecution intends to use must be disclosed. Thus, there was
no violation of HRPP Rule 16(b)(1)(ii) when the prosecution
did not disclose to Mata the videotape of Okumura's interview.
On the other hand, because the videotape is no longer available,
whether the evidence would be exculpatory cannot be
conclusively established. Nonetheless, under the United States
Constitution, "[w]here the state destroys evidence that has only
a potential exculpatory value, due process is not offended
unless the defendant can demonstrate that the state acted in bad
 faith." Matafeo, 71 Haw. at 187, 787 P.2d at
673 (citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct.
333, 102 L.Ed.2d 281 (1988), reh'g denied, 488 U.S. 1051, 109
S.Ct. 885, 102 L.Ed.2d 1007 (1989)). In the instant case, there
is no evidence that the prosecution acted in bad faith. Therefore,
Mata has failed to establish a violation of the Youngblood rule.

 Motion for Judgment of Acquittal

At the close of all the evidence, Okumura moved for a
judgment of acquittal as to the Ihara burglary on the grounds
that there was no evidence that Okumura did not have
permission to enter the Ihara residence or that any crime had
been committed therein. The court denied the motion.
Okumura next argues that there was insufficient evidence to
support his conviction of the Ihara burglary because the
prosecution presented no evidence that he did not have
permission to enter the Ihara residence, and that his motion for
judgment of acquittal made at the close of the evidence should
therefore have been granted. Mata joins in the argument on the
basis that the circuit court's failure to grant Okumura's motion
for judgment of acquittal as to the Ihara burglary prejudiced
Mata because Mata indisputably had ties to the Iharas and
Okumura.
HRS § 708-810(1)(c) (1985) sets forth the elements of burglary in
the first degree as follows:
(1) A person commits the offense of burglary in the first degree if
he intentionally enters or remains unlawfully in a building, with
intent to commit therein a crime against a person or against
property rights, and:
(c) He recklessly disregards a risk that the building is the dwelling
of another, and the building is such a dwelling.
Although there was no direct evidence that Okumura did not
have permission to enter, in light of the evidence of the
surreptitious manner in which Okumura approached, entered,
and left the Ihara residence and the testimony that the burglary
was planned in advance, a reasonable mind could infer that
Okumura did not in fact have permission from the Iharas. Thus,
considering the evidence in the light most favorable to the
prosecution, we conclude that the circuit court did not err in
denying Okumura's motion for judgment of acquittal.
 Identification Instructions
Okumura argues that the circuit court erred when it refused to give
his requested instructions regarding identification because the
reliability of Kobayashi's identification of him was a key issue in
the case and the requested instructions would have assisted the
jury in correctly assessing Kobayashi's identification.
In the instant case, Okumura's attorney brought up the reliability
of Kobayashi's identification during opening statement. In
addition, Kobayashi was thoroughly cross-examined by counsel
for both Appellants regarding the facts and circumstances
surrounding both his opportunity to view the perpetrator at the
time of the burglary and his identification of Okumura at the
preliminary hearing. Finally, the circuit court gave general
instructions on judging witnesses' credibility and the prosecution's
burden of proof, and specifically instructed the jury not to draw
any inference of guilt from evidence that Okumura was presented
to Kobayashi in a photographic array. Under these circumstances,
we believe that the jury's attention was adequately drawn to the
identification issue. Therefore, the circuit court did not err in
refusing to give Okumura's requested instructions regarding
identification witnesses.

 Accomplice/co-conspirator witness instruction

Okumura next argues that the circuit court erred in refusing to
give special instructions regarding the testimony of alleged
accomplices or co-conspirators.
The testimony of an accomplice should be scrutinized and acted
upon with special care and great caution. No defendant should be
convicted on uncorroborated testimony of an accomplice.
Uncorroborated testimony is testimony which has no basis other
than the testimony of a person, either charged or uncharged, who
is or who is alleged to be an accomplice of another in the
commission of a crime.
The emphasized portion above is an incorrect statement of the law
— corroboration of the testimony of an accomplice is not required
to convict. State v. Lincoln, 3 Haw. App. 107, 118, 643 P.2d 807,
815 (1982). Therefore, it was not error for the circuit court to
refuse to give the requested instruction.
Thus, the question in the instant case becomes whether
accomplice witness instructions were necessary for the jury to
have a clear and correct understanding of what they had to decide.
In other words, the question is whether the court's failure to give a
proper accomplice witness instruction constituted plain error. See
id. at 393, 879 P.2d at 498.
In the instant case, on the other hand, the record is replete with
references to the motives that Kona and Morgan may have had to
provide false testimony. The references began during jury
selection and continued during opening statements. When Kona
and Morgan took the stand, the prosecution questioned them about
their respective plea agreements and their reasons for testifying.
Both Appellants then engaged in lengthy cross-examination of
both Kona and Morgan on this issue, obviously for the purpose of
drawing the jury's attention to their motives for providing false
testimony. Finally, the jury instructions that were given included
an instruction that "[i]n evaluating the weight and credibility of a
witness'[s] testimony, you may consider . . . the witness'[s]
interest, if any, in the result of this case; . . . the witness'[s] . . .
bias, if any has been shown; . . . and all other circumstances
surrounding the witness and bearing upon his or her
credibility." Thus, "[t]he jury was thoroughly informed of the
accomplices' background, relationship to the government and
motive for testifying as government witnesses. The omission of a
single specific instruction that the jury weigh such testimony with
care was not plain error." Beasley, 519 F.2d at 243. See also
United States v. Buljubasic, 808 F.2d 1260, 1267 (7th Cir.)
(holding that failure to give accomplice witness instruction was
harmless where court instructed jury to take each witness's interest
into account and accomplice witness was cross-examined
fully), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31
(1987); Smith, 461 A.2d at 1076 (holding that trial court's refusal
to give accomplice witness instruction was not error where general
witness credibility instructions were given and the jury was fully
informed about the accomplice witness's motives to testify).

 Jury instructions regarding proof necessary to convict

Okumura of conspiracy
Okumura next contends that the jury was not adequately instructed
with respect to its ability to convict him of both the conspiracy
and substantive offense charges. At trial, Okumura requested two
instructions on this issue, both of which were refused. Okumura's
requested jury instruction no. 18 stated: "A defendant may not be
convicted of more than one offense if one offense consists only of
a conspiracy to commit the other." Okumura's requested
supplemental jury instruction no. 2 stated: "You may not convict
the defendants of both the substantive Burglary offenses and the
Conspiracy offense. You may only consider the guilt or innocence
of the defendants as to the Conspiracy offense if you find them not
guilty of the underlying Burglary offenses."
At first glance, the instructions requested by Okumura appear to
reflect the law set forth in HRS § 701-109(1)(b) (1985) and State
v. Reyes, 5 Haw. App. 651, 706 P.2d 1326, reconsideration
denied, 5 Haw. App. 683, 753 P.2d 253 (1985). HRS § 701-
109(1)(b) provides:
(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.
He may not, however, be convicted of more than one offense if:
(b) One offense consists only of a conspiracy or solicitation to
commit the other[.]
In the instant case, however, Okumura was not simply charged
with one substantive crime and conspiracy to commit that crime.
Rather, Okumura was charged with three burglary offenses (the
Ihara, Sano, and Kobayashi burglaries) and conspiracy to commit
those three burglaries as well as the Parsa burglary.
In the instant case, Okumura was charged with conspiracy to
commit four burglaries and was convicted of committing only two
of those burglaries. Thus, the jury could have convicted Okumura
of the conspiracy charge; however, the conspiracy conviction was
proper only if it were based on one or both of the burglaries for
which Okumura had not been convicted.
In the instant case, the jury should have been instructed to only
consider the conspiracy charge after first reaching verdicts as to
all of the substantive burglary charges. Furthermore, the circuit
court should have instructed the jury that when considering the
conspiracy charge, in order to return a guilty verdict, it would
have to find: (1) that the objective of the conspiracy was the
commission of one or more burglaries other than any burglaries on
which it had reached a guilty verdict; and (2) that Okumura or one
of his co-conspirators had committed an overt act in furtherance of
that burglary (or burglaries).
In the instant case, the failure to properly instruct the jury was
harmless as to the convictions for the two substantive
burglaries. See Reyes, 5 Haw. App. at 659, 706 P.2d at 1330-31.
Therefore, we will not vacate Okumura's convictions and
sentences for the Ihara and Kobayashi burglaries because of the
incomplete jury instructions.

 Appropriateness of extended term sentencing

Okumura's final argument is that the circuit court erred when it
sentenced him to extended terms of imprisonment because
Okumura's prior sexual assault and escape convictions that
occurred between 1974 and 1978 were "stale" and provided an
insufficient basis for the court to find that extended terms were
necessary for the protection of the public.
HRS § 706-662(1) and (4) provide:
Criteria for extended terms of imprisonment. A convicted defendant may be
subject to an extended term of imprisonment under section 706-661, if the
convicted defendant satisfies one or more of the following criteria:

(1) The defendant is a persistent offender whose imprisonment for an extended

term is necessary for the protection of the public. The court shall not make such a
finding unless the defendant has previously been convicted of two felonies
committed at different times when the defendant was eighteen years of age or
older.

....

(4) The defendant is a multiple offender whose criminal actions were so extensive
that a sentence of imprisonment for an extended term is necessary for the
protection of the public. The court shall not make such a finding unless:
circuit court found that Okumura was both a persistent and
multiple offender. Okumura does not contest those findings.
Moreover, even when Okumura's conspiracy conviction is not
considered
(a) The defendant is being sentenced for two or more felonies or is already under
sentence of imprisonment for felony; or

(b) The maximum terms of imprisonment authorized for each of the defendant's
crimes, if made to run consecutively would equal or exceed in length the maximum
of the extended term imposed, or would equal or exceed forty years if the extended
term is imposed for a class A felony.
At the sentencing hearing, the, the remaining two burglary
convictions for which Okumura was being sentenced suffice to
establish that Okumura was a multiple offender under HRS § 706-
662(4). Thus, the circuit court did not err in the first step of the
extended term sentencing procedure.
 The Verdict
The jury returned verdicts of guilty against Okumura with respect
to the Kobayashi and Ihara burglaries as well as to the criminal
conspiracy. The jury was unable to unanimously reach a verdict as
to the Sano burglary and a mistrial was declared on that charge.
The jury returned a verdict of guilty against Mata on the criminal
conspiracy charge.

 Sentencing
Sentencing took place on July 20, 1992. Okumura was sentenced
for two counts of burglary in the first degree and one count of
criminal conspiracy. A motion for extended terms was made by
the prosecution on the basis of five prior convictions for sexual
assault and escape and the sophisticated nature of the burglaries.
The court found that Okumura was a persistent and multiple
offender and, because "criminality was so extensive," granted the
motion. Thus, Okumura was sentenced to an indeterminate term of
twenty years on each count, to be served concurrently.

 Conclusion
CONCLUSION

For the foregoing reasons, we vacate Okumura's conviction and

sentence on the conspiracy charge and remand for a new trial. In
addition, we affirm Okumura's convictions on the burglary
charges but remand to the circuit court for clarification of the
record with respect to its decision to impose extended terms of
imprisonment. Finally, we affirm Mata's conviction and sentence
on the conspiracy charge