State v. YUE

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N0T F0R PUBLICATIQN lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPQRTER

NO. 29l4l
IN THE lNTERMEDIATE COURT OF APPEALS

oF THE STATE oF HAWAI‘I

STATE oF HAWAI‘I, Plaintiff-Appellee,
V.
RUSSELL YUE, Defendant-Appellant.

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APPEAL FROM THE CIRCUIT COURT OF THE FIRST ClRCUIT
(FC-CR. NO. 07-l-l702)

» SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Reifurth and Ginoza, JJ.)
Defendant-Appellant Russell Yue (Yue) appeals from the
Judgment of Conviction and Sentence (judgment) filed on April 4,
2008 in the Circuit Court of the First Circuit (circuit court),1
convicting him of one count of Abuse of Family and Household
Members in violation of Hawaii Revised Statutes (HRS) § 709-9O6.2
On appeal, Yue contends that he received ineffective
assistance of trial counsel for a variety of reasons, including
his trial counsel's failure to request a jury instruction on the
defense of Use of Force for the Protection of Property

(Protection of Property Defense).

1 The Honorable Rhonda A. Nishimura presided.

2 HRS § 709-906 (1993 & Supp. 2007) provides, in pertinent part:

§709-906 Abuse of family and household members;
penalty. (l) It shall be unlawful for any person, singly or
in concert, to physically abuse a family or household member

For the purposes of this section, "family or household
member" means spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons who have a
child in comm0n, parents, children, persons related by
consanguinity, and persons jointly residing or formerly
residing in the same dwelling unit.

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Upon careful review of the record and the briefs
submitted by the parties, having given due consideration to the
arguments advanced and the issues raised by the parties, and in
light of the recent decision in State v. Stenger, 122 HawaiH
27l, 226 P.3d 441 (2Ol0),3 we conclude that the circuit court
plainly erred in failing to instruct the jury on the Protection
of Property Defense. Because we decide this appeal based on
Stenger, we do not reach any further issues on appeal.

I. Background

On July lO, 2007, Plaintiff-Appellee State of HawaiU_
(State) charged Defendant Yue with two counts of Abuse of Family
and Household Members in violation of HRS § 709-906. Count I
charged Yue with intentionally, knowingly, or recklessly
physically abusing his wife, Ok Nam Yue (Ok Nam), on June 30,
2007; Count ll charged Yue with intentionally, knowingly, or
recklessly physically abusing his daughter, Jennifer Yue
(Jennifer), also on June 30, 2007.

The charges stem from an incident on June 30, 2007,
when Yue and his wife got into a physical altercation at his
office. Ok Nam and Jennifer went to Yue's place of work,
allegedly to get money he owed Jennifer. While in Yue's office,
Ok Nam and Yue got into a verbal and physical altercation that
resulted in Ok Nam allegedly hitting her head on the floor. One
week prior, Ok Nam had attended the funeral of Yue's mother and
after the funeral service served Yue with a divorce complaint and
allegedly initiated an altercation with him where she was yelling
and hitting him. The question of whether Ok Nam instigated the
events on June 30, 2007 was central to the case.

A jury trial was held September 25 through
September 27, 2007. Yue was represented at trial by attorney

9 The decision in Stenger was issued in March 2010.

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Blake Okimoto. (Okimoto or trial counsel). After deliberations,
the jury found Yue guilty as charged as to Count I and not guilty
as to Count II.

Defendant Yue then filed a motion for new trial,
alleging that Okimoto had been ineffective trial counsel.
Hearings on the motion were held on December 13, 2007,

January l8, 2008, February 15, 2008, and March 7, 2008. On

April 4, 2008, the circuit court issued its oral decision denyingb

the motion for new trial and on June 24, 2008 filed its "Findings
of Fact, Conclusions of Law, and Order Denying Defendant's Motion
for New Trial."

The circuit court entered its judgment on April 4, 2008
and sentenced Defendant to two years of probation and seven days
of imprisonment, with credit for time served.4

Defendant's timely appeal followed.

II. Discussion

It is undisputed that trial counsel did not submit a
proposed instruction on the Protection of Property Defense to the
court for consideration by the jury. Such an instruction would
have been based on HRS § 703-306 (1993), which provides, in

pertinent part:

§703-306 Use of force for the protection of property.
(l) The use of force upon or toward the person of another is
justifiable when the actor believes that such force is
immediately necessary:

(c) To prevent theft, criminal mischief, or any
trespassory taking of tangible, movable
property in the actor's possession or in
the possession of another person for whose
protection the actor acts.

(2) The actor may in the circumstances specified in
subsection (1) use such force as the actor believes is
necessary to protect the threatened property, provided that
the actor first requests the person against whom force is

4 Defendant's sentence was stayed pending appeal.

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used to desist from the person's interference with the
property, unless the actor believes that:

(a) Such a request would be useless; or

(b) It would be dangerous to the actor or another
person to make the request; or

(c) Substantial harm would be done to the physical
condition of the property which is sought to be
protected before the request could effectively be
made.

Trial counsel did submit a proposed jury instruction,
and the circuit court did instruct the jury, on the defense of
Use of Force in Self-Protection (Self Defense) under HRS § 703~

304 (1993) .5 However, that jury instruction necessarily did not

5 The Self-Defense jury instruction read:

7.0l Self Defense

Justifiable use of force-~commonly known as self
defense-~is a defense to the charge of Abuse of Family and
Household Members. The burden is on the prosecution to
prove beyond a reasonable doubt that the force used by the
defendant was not justifiable. If the prosecution does not
meet its burden then you must find the defendant not guilty.

The use of force upon or toward another person is
justified when a person reasonably believes that such force
is immediately necessary to protect himself on the present
occasion against the use of unlawful force by the other
person. The reasonableness of the defendant's belief that
the use of such protective force was immediately necessary
shall be determined from the viewpoint of a reasonable
person in the defendant's position under the circumstances
of which the defendant was aware or as the defendant
reasonably believed them to be.

"Force" means any bodily impact, restraint, or
confinement, or the threat thereof.

"Unlawful force" means force which is used without the
consent of the person against whom it is directed and the
use of which would constitute an unjustifiable use of force.

If and only if you find the defendant was reckless in having
a belief that he was justified in using self~protective force
against another person, or that the defendant was reckless in
acquiring or failing to acquire any knowledge or belief which was
material to the justifiablity of his use of force against the
other person, then the use of such self~protective force is
unavailable as a defense to the offense of Abuse of Family and
(continued...)

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provide the same instructions that would have been covered by a
jury instruction on the Protection of Property Defense.
Moreover, during the trial, trial counsel argued, elicited
testimony, and submitted evidence that Ok Nam not only initiated
the physical altercation with defendant Yue, but also that she
allegedly was damaging property in his office.

The defense entered into evidence EXhibit F, a broken
compact disc (CD) which Yue testified his wife had "wrecked;"
Defendant Yue told the jury that the CD got ripped in half by his

wife, who "bent it with her hands" because

she was very angry. She grabbed more software after that.
The software is located on the left side of my index tray.
1 had some Verizon software 1 just picked up some, a new
program from Verizon and 1 was able to get that software
away from her . . . [s]he grabbed more of my software and 1
grabbed her with my left hand and 1 pulled the software and
as 1 did that, she fell back.

When asked how Ok Nam ended up on the floor of his
office, Yue testified that “she started grabbing software
and started actually bending it with her hands, and 1 got kind of
outraged by that because that's all my company files on there, a

lot of hard work." Yue further_testified:

1 tried to stop her from touching anymore software . . . 1
tried to grab the software out of her hands and when 1
tried, she had a Verizon software that we just got sent

that software from Verizon, and when 1 tried to - it's for
my charge card issues, when 1 do the charge cards via the
computer and that was really important. 1t wasn't the cost
of the software, it was free from Verizon. 1 tried to pull
the software away from her hands, 1 grabbed her right with
my left hand and she fell back and 1 retained the software.
1 put the software back on the desk where it fell on the
ground. 1 don't recall.

Yue also testified that Ok Nam "had a software that was damaged

already, and she was trying to strike me in the face with the

software." When asked if he "had to protect [himself]," Yue

5(...continued)
Household Members.

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replied, "1 was, 1 grasped her arms because she was really
pulling on my shirt J”

Sang Park, a witness for the defense, also testified
that he witnessed Ok Nam violently damaging property. He said

that he saw Ok Nam go to one of the desks in Yue's office

and [do] one of these numbers where she got her arm and
kine'a pushed everything off the desk. She had some
software and kine'a like bent it, and then . . . Russell
kine'a went up to her, like, what are you doing, and then
she grabbed him by the collar and was kine'a like with the
other arm just flailing at him.

Given the manner in which Yue's defense was presented
at trial, the substantial evidence in the case, and that Self
Defense and the Protection of Property Defense are distinct and
separate defenses,7 the circuit court had a duty under Stenger to
sua sponte instruct the jury on the Protection of Property
Defense. )

1n Stenger, the Hawafi Supreme Court considered

whether and when a trial court is obligated to give a jury

5 During trial, Ok Nam testified regarding the CD, including:

. . . 1 was stepping back and 1 had to hold on to the
desk with my left hand and there was a CD right there,
right on the desk, so 1 grabbed the CD and because of
the urgency [of] him coming towards me, 1 grabbed the
CD and 1 did this motion to stop him from coming
towards me.

When asked why she had grabbed the CD, Ok Nam responded: "1 didn't have
anything else to grab and my hand was on the desk and it was just there, and 1
didn't know what it was, 1 just grabbed it." Ok Nam testified that she did
not rip, destroy, or bend a CD, and that her husband never tried to stop her
from damaging the CD,

7 We recognize, as the circuit court did, that the commentary to HRS

'§ 703-306 states: "(Note that in any case in which the actor fears bodily

injury to the actor or another, §§703-304, 305 would apply rather than §703-
306. Thus, robbery may be covered by those sections rather than this, if the
robber places the actor in fear of bodily injury or death.)." The commentary
arguably creates some confusion regarding these defenses, but does not resolve
the question of whether an instruction should be given in cases like this
where both defenses may apply. The requirements for Self Defense are distinct
from the requirements under the Protection of Property Defense and thus a jury
should be instructed on both if each defense potentially applies.

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instruction on a potential defense where the defendant has not
requested the instruction, Four separate opinions were issued,
with a majority of the court, in two opinions, ruling that the
trial court was obligated, sua sponte, to give the jury
instruction at issue in that case. 122 Hawafi at 273, 226 P.3d
at 443 (Acoba, J.); id4 at 296, 226 P.3d at 466 (Kim, J.,
concurring); id4 at 297, 226 P.3d at 467 (Moon, C.J.,
dissenting); idL at 300, 226 P.3d at 470 (Nakayama, J.,
dissenting). while the multiple opinions differ regarding the
applicable standard, it is at least clear that four of the five
members of that court agree that a trial court has a duty to sua
sponte instruct the jury on a particular defense if: "(l) it
appears that the defendant is relying on such a defense, or (2)
if there is substantial evidence supportive of such a defense and
the defense is not inconsistent with the defendant's theory of
the case." 122 HawaFi at 299, 226 P.3d at 469 (Moon, C.J.,
dissenting); id4 at 281, 226 P.3d at 451 (Acoba, J.); id; at 296-
97, 226 P.3d at 466-67 (Kim, J., concurring).
1n this case, the theory that Yue acted to protect not
only himself but his property was central to the defense
presentation at trial. There was also substantial evidence in
support of a Protection of Property defense, including evidence
of the bent CD and testimony that Defendant Yue was trying to
prevent Ok Nam from further damaging his work property at the
time of the altercation. Thus, a jury could have believed that
Defendant Yue's use of force on Ok Nam was justifiable if Yue
believed that such force was "immediately necessary . . . [t]o
prevent . . . any trespassory taking of tangible, movable
property" in Yue's possession. §§§ HRS § 703-306.
we cannot say that the failure to instruct the jury on

the Protection of Property Defense was harmless beyond a

reasonable doubt, as "there is a reasonable possibility that the

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error contributed to the defendant's conviction[.]"8 §ge
Stenger, 122 Hawai‘i at 281, 226 P.3d at 451 (quoting State v.
NiChols, lll HaWafi 327, 337, 141 P.3d 974, 984 (2006)).
Therefore, even though not requested by the defense, the circuit
court had a duty to sua sponte instruct the jury on the
Protection of Property Defense in this case.

111. Conclusion y

For the foregoing reasons, we vacate the judgment

entered on April 4, 2008 and remand for a new trial.

DATED: Honolulu, HawaiTq September 23, 2010.
On the briefs:
Michael J. Park

for Defendant-Appellant

Delanie D. Prescott-Tate
Deputy Prosecuting Attorney
City and County of Honolulu

Associate Judge

s-»uws'-§p

Associate Judge

3 Testimony by one witness, Scott Sakanashi, indicated that because Yue
is "a big guy," if Ok Nam "was really hitting really hard, he probably would
take it." 1t is therefore possible that the jury rejected Self Defense, but
would have favorably considered the Protection of Property Defense.

8