***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-12-0000588
20-MAR-2017
08:41 AM
SCWC-12-0000588
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
vs.
SCOTT YANG, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000588; CR. NO. 10-1-0899)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
and Circuit Judge Kuriyama, in place of Wilson, J., recused)
Petitioner/Defendant-Appellant Scott Yang seeks review
of the July 1, 2016 Judgment on Appeal of the Intermediate Court
of Appeals (ICA), entered pursuant to the ICA’s May 12, 2016
Summary Disposition Order. The judgment affirmed the Circuit
Court of the First Circuit’s (circuit court) May 12, 2012
***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Judgment,1
which convicted Yang of Counts VI and VIII in
violation of Hawai'i Revised Statutes (HRS) § 709-906(1)2
and
(5).3
On certiorari, Yang contends that the ICA erred in
holding that (1) regarding Count VI, the self-defense and defense
of others jury instructions were not plainly erroneous; and (2)
regarding Count VIII, the circuit court did not err in refusing
the time-specific elements instruction and denying his motion to
1
The Honorable Michael D. Wilson presided.
2
HRS § 709-906(1) (Supp. 2012) provides:
(1) It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household
member or to refuse compliance with the lawful order
of a police officer under subsection (4). The police,
in investigating any complaint of abuse of a family or
household member, upon request, may transport the
abused person to a hospital or safe shelter.
3
HRS § 709-906(5) (Supp. 2012) provides:
(5) Abuse of a family or household member and refusal
to comply with the lawful order of a police officer
under subsection (4) are misdemeanors and the person
shall be sentenced as follows:
(a) For the first offense the person shall serve
a minimum jail sentence of forty-eight hours; and
(b) For a second offense that occurs within one
year of the first conviction, the person shall be
termed a “repeat offender” and serve a minimum jail
sentence of thirty days.
Upon conviction and sentencing of the defendant, the
court shall order that the defendant immediately be
incarcerated to serve the mandatory minimum sentence
imposed; provided that the defendant may be admitted
to bail pending appeal pursuant to chapter 804. The
court may stay the imposition of the sentence if
special circumstances exist.
2
***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
dismiss and motion for judgment of acquittal.
This court accepted Yang’s application for writ of
certiorari, and we now affirm the ICA’s judgment on appeal as to
Count VI, vacate the ICA’s judgment on appeal and the circuit
court’s judgment as to Count VIII, and remand the case to circuit
court as to Count VIII for further proceedings.
With respect to the self-defense jury instructions
given as to Count VI, we conclude that the circuit court properly
gave the relevant jury instructions. Thus, the ICA did not err
in affirming the circuit court’s judgment as to Count VI.
With respect to Count VIII, we conclude that the
circuit court erred in denying Yang’s motion to dismiss. We find
persuasive Yang’s argument that the trial testimony of the
complaining witness created a material time variance from the
State’s response to the notice of alibi, thereby undermining the
defense that Yang prepared. We further note that the State
conceded in its closing argument that it did not prove Count VIII
beyond a reasonable doubt. However, we conclude that there was
sufficient evidence to support a conviction, and that the circuit
court did not err in denying the motion for judgment of
acquittal.
Accordingly, we affirm the ICA’s July 1, 2016 Judgment
on Appeal as to Count VI, and vacate the ICA’s July 1, 2016
Judgment on Appeal and the circuit court’s May 12, 2012 Judgment
3
***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
as to Count VIII, and remand the case to circuit court for
further proceedings consistent with this Order.
DATED: Honolulu, Hawai'i, March 20, 2017.
Phyllis J. Hironaka /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Christine E. Kuriyama
4