MERGER – CONTINUING AND UNINTERRUPTED COURSE

MERGER – CONTINUING AND UNINTERRUPTED COURSE OF CONDUCT: H.R.S. § 701-109(1)(e) If and only if you find the Defendant guilty of both (name of offense) in Count (count number) and (name of offense) in Count (count number), then you must answer the following questions on a special interrogatory that will be provided to you: (1) Did the prosecution prove beyond a reasonable doubt that the Defendant did not commit (name of offense) in Count (count number) and (name of offense) in Count (count number) as part of a continuing and uninterrupted course of conduct? (2) Did the prosecution prove beyond a reasonable doubt that the Defendant committed (name of offense) in Count (count number) and (name of offense) in Count (count number) with separate and distinct intents, rather than acting with one intention, one general impulse, and one plan to commit both offenses? Your answers to these questions must be unanimous. Notes This instruction addresses only the form of merger contemplated by HRS § 701 109(1)(e) and the cases construing it. Generally, offenses will merge pursuant to § 701-109(1)(e) whenever “(1) there is but one intention, one general impulse, and one plan, (2) the ... 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.” State v. Hoey, 77 Hawai’i 17, 38 (1994) (citations omitted). The instruction incorporates only the factual determinations required by Hoey. For merger to occur, both questions posed by the instruction must be answered in the negative. All factual issues involved in the merger determination must be decided by the trier of fact. Hoey, 77 Hawai’i at 27 n. 9. Where § 701-109(1)(e) applies, the failure to give a merger instruction is plain error. State v. Matias, 102 Hawai’i 300, 306 (2003).