NOT FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND' PACIFIC REPORTER
NO. 29445
IN THE INTERMEDIATE COURT OF APPEALS
oF THE sTATE oFiHAwAr:
sTATE oF HAwArI, plaintiff-Appe11ee, v.’
CEDRIC K. KIKUTA, Defendant-Appellant
93 =; c»w ss Avwmaz
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(FC-CRIMINAL NO. 07-l-OO56)
MEMORANDUM OPINlON
Foley and Fujise, JJ.; and
(By:
C.J., dissenting)
Nakamura,
Defendant~Appellant Cedric K. Kikuta (Kikuta) appeals
from the Judgment of Conviction and Sentence filed on October l,
2008 in the Family Court of the First Circuit (family court)F~,A
jury convicted Kikuta of Assault in the Third Degree, in
violation of Hawaii Revised Statutes (HRS) § 707-712 (1993),”
against his then-stepson (Complainant), who was a minor at the
time,“ The family court sentenced Kikuta to one year of
probation and two months of imprisonment and ordered him to pay
various fees. .
On appeal, Kikuta argues that the family court (l)
erred by failing to instruct the jury on Kikuta's parental
1 The Honorable Rhonda A. Nishimura presided.
2 HRS § 707-712 provides:
§707-712 Assault in the third degree. (l) A person commits
the offense of assault in the third degree if the person:
or recklessly causes bodily
Intentionally, knowingly,
or
(a)
injury to another person;
Negligently causes bodily injury to another person
(b)
with a dangerous instrument.
(2) Assault in the third degree is a misdemeanor unless
committed in a fight or scuffle entered into by mutual consent,
which case it is a petty misdemeanor,
in
3 Kikuta was charged with Assault in the Second Degree, in violation of
HRS § 707-7l1(l)(a) (Supp. 2007), but the jury found him guilty of the lesser
offense of Assault in the Third Degree.
4 Complainant was fourteen at the time of the incident.
hang
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discipline defense5 where there was support in the evidence for
that instruction and (2) plainly erred by failing to instruct the
jury that it was required to determine whether Assault in the
Third Degree had been committed during a fight or scuffle entered
into by mutual consent. Kikuta requests that we vacate his
conviction and remand his case for a new trial on the charge of
Assault in the Third Degree.
I. BACKGROUND
A. Complainant's testimony
At trial, Complainant testified that he had known
Kikuta for about five or six years. At the time of the incident,
Kikuta was his step-father and lived with Complainant and his
mother. Complainant stated that Kikuta had been more or less the
father figure in his life, Complainant called Kikuta "dad," and
Kikuta called Complainant "son." They did some father and son
things together, like play basketball and fish, and Kikuta helped
him with his school work, but the two had arguments and their ups
and downs and "never actually got along that well."
On the morning of September 30, 2007, Complainant and
his cousin (Cousin) were in the game room at Complainant's house,
when Kikuta went into the game room and told Complainant to feed
the dog. Complainant's mom was at McDonald's. Kikuta had
Arecently had surgery on his leg, was in a cast, and walked with
5 HRS § 703-309(1) (l993) provides:
§703-309 Use of force by persons with special
responsibility for care, discipline, or safety of others. The use
of force upon or toward the person of another is justifiable under
the following circumstances:
(l) The actor is the parent or guardian or other person
similarly responsible for the general care and supervision of a
minor, or a person acting at the request of the parent, guardian,
or other responsible person, and:
(a) The force is employed with due regard for the age and
size of the minor and is reasonably related to the
purpose of safeguarding or promoting the welfare of
the minor, including the prevention or punishment of
the minor's misconduct; and
(b) The force used is not designed to cause or known to
create a risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress, or
neurological damage.
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crutches. Complainant told Kikuta he would feed the dog in five
minutes because he was busy watching a video on his computer.
Five minutes later, Complainant and Cousin went to the kitchen,
and Complainant fed the dog dry grains mixed with baby food.
Complainant cleaned the dog bowl, then returned to the game room.
He testified he was not sure if he left the baby food jar on the
kitchen counter.
Later, Kikuta saw a stain on the carpet of the game
room that was from the dog's diarrhea and told Complainant to
clean it up. The stain had been there for about six months.
when it first appeared, Complainant had wiped it with a napkin,
which did not work, Complainant told Kikuta he could not clean
it because it was a stain. Kikuta and Complainant were kind of
yelling at each other. Complainant testified on direct
examination that Kikuta told him, "I bet I could get it out," and
he responded, "I bet you not." However, on cross-examination,
Complainant testified that he told a detective he initiated the
bet. Kikuta bet Complainant that if Kikuta could remove the
stain, Complainant would be grounded for a year. Complainant
responded with what happened to come to his mind, which was if
Kikuta could not remove the stain, Complainant could kick Kikuta
in his injured leg,
Kikuta left the game room through a glass door to get
something from the kitchen to clean the carpet, and Complainant
slammed the glass door shut because he was pretty sure Kikuta
could get out the stain and he was mad because he did not want to
be grounded. Complainant had been yelled at before about
slamming the glass door because it could shatter and break.
Kikuta came back into the game room, looking angry.
Through the glass door, Kikuta tried to get Complainant's
attention, but Complainant ignored him. Complainant testified he
thought Kikuta may have yelled at him for slamming the door.
Complainant did not say anything and was mad. Kikuta then
slammed open the glass door, dropped the crutches, and pushed
Complainant backwards into another glass door. Complainant said,
"Ow, stop,“ and got up.
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Kikuta pushed Complainant back down, and Complainant
grabbed one of Kikuta's crutches and stood up, holding the crutch
sideways. Complainant grabbed the crutch because he thought
Kikuta could not walk or run without it and that would enable
Complainant to get away. Complainant testified that he did not
try to hit Kikuta or make any movement toward Kikuta with it, but
he figured Kikuta thought he was going to whack him with it,
Complainant and Kikuta were not saying anything to each other
during this time. Complainant tried to get past Kikuta to the
room's only exit. Kikuta pushed the crutch against Complainant,
causing Complainant to hit the glass door again.
Complainant testified that Kikuta then punched him five
times on the right side of his face with a closed fist. However,
on cross-examination, Complainant admitted that in a statement to
a detective and under oath at a hearing, he said Kikuta punched
'him four or five times. Complainant conceded that it could have
been four or five times. lt hurt when Kikuta punched him.
Complainant fell to his knees and covered his head while he
looked at the floor. Kikuta punched him two or three times on
the back of the head. Kikuta was standing on one foot.
Complainant said, "Ow, stop." Kikuta left the room, and
Complainant remained there, spitting out little pieces of his
teeth.
Complainant was fifteen at the time of trial, At the
time of the incident, he was a couple of inches shorter than six
feet tall and weighed about 160 pounds. He testified he had not
given Kikuta permission to hit him, had not threatened to hit
Kikuta, and had not hit Kikuta. Complainant stated that although
he had not intentionally acted like he was going to hit Kikuta,
it may have looked like he was going to do so.
Complainant and Cousin went to Complainant's bedroom,
and Complainant saw in the mirror that his nose was bleeding and
the right side of his face was swollen. They cleaned `
Complainant's nose. Kikuta came to the doorway and told
Complainant to clean up the game room. Complainant responded,
"No, you just hit me. Why should I clean up my room?" Kikuta
said something (which Complainant could not remember at trial)
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and then raised his hands to his face in a boxer's stance, as if
he wanted to fight again. The crutches were off to the side, and
-Kikuta was standing on one leg, Complainant said "Never mind.
I'll just clean my room" and walked back to the game room with
Cousin. Cousin and Complainant cleaned the game room.
Kikuta then went into the game room and told
Complainant to give the dog some water. Complainant did as he
was told. Complainant testified that he did not recall what
happened next, but he might have been mumbling something under
his breath when Kikuta began chasing him around the kitchen on
his crutches, saying "I can catch you even with a broken leg."
Complainant stated that Kikuta may have thought Complainant said
something bad when he was mumbling. Complainant ran away because
he did not want to get hit again. The chase stopped, and
Complainant returned to the game room.
Complainant's mom came home, and Complainant and Cousin
told her what happened. She yelled at Complainant and Cousin to
get in the car, and they went to K-Mart and then to church.
After church, they went to Pali Momi Hospital (Pali Momi).
As a result of the incident, the right side of
Complainant's face was swollen, his nose was broken, three of his
teeth were chipped, his wrist was red and swollen, his right
forearm area was bruised, he had a bruise below his right eye,
and he had a bump on the back of his head. He had to wear a
splint on his wrist.
About two and a half years prior to the incident, when
Complainant was twelve years old, another incident had occurred
between him and Kikuta. Kikuta asked Complainant to cook some
rice. Complainant cooked the rice, and Kikuta became upset
because it was mushy. Kikuta yelled at Complainant and told him
to make it again, but Complainant did not do so. Using the mushy
rice, Complainant made himself dinner. Complainant's friend
(Friend) was at the house with him. Complainant did not remember
at trial if Kikuta told or asked him to give Friend some of the
food, but when Complainant offered Friend some, Friend did not
want any. Complainant and Friend went into the game room. while
Complainant was eating his food, with Friend in the room, Kikuta
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came in and knocked the bowl of food out of Complainant's hand.
Complainant testified that Kikuta may have said something prior
to knocking the bowl, but Complainant could not recall what it
was. Complainant was kind of scared. Rice and meat from the
bowl landed all over the walls, floor, and ceiling and on
Complainant's hair and clothes. Complainant tried to clean up
the food, and Kikuta knocked the bowl out of his hands again.
Complainant did not say anything to Kikuta. Kikuta went to the
living room and sat down on the couch.
Complainant went into the kitchen and grabbed a sushi
knife because he did not want Kikuta to come back into the game
room. From about fifteen or twenty feet away, Complainant showed
Kikuta the knife and said, "Come on," "Stay away from me," and
some other things he did not remember at trial. Kikuta told
Complainant to put the knife away. Kikuta told Complainant a
second time to put the knife away before Kikuta counted to three.
Kikuta counted to three and stood up, and Complainant ran into
the kitchen and threw the knife into the sink. Complainant was
afraid of getting hit. Afterwards, Kikuta acted like nothing
happened.
B. Cousin's testimony
Cousin's testimony was substantially similar to
Complainant's. Cousin also testified as follows:
Complainant's mom was Cousin's aunt. At the time of
the incident, Cousin was thirteen years old.
0n the day of the incident, Kikuta taught Complainant
how to feed the dog by mixing dog food with baby food and how to
wash the dog's water bowl. After Complainant fed the dog and
washed the water bowl, Cousin and Complainant returned to the
game room.
When Kikuta complained to Complainant about the stain,
Complainant told Kikuta that it had been there for like a year.
Cousin testified that Kikuta was the one to bring up the bet.
However, Cousin later testified that Complainant actually started
the whole idea of a bet by asking Kikuta if he wanted to bet
Kikuta could not remove the stain. Then, Kikuta responded by
setting a term.
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Cousin testified that it was a rule in Complainant's
house that the glass door was not to be slammed because it was
glass and also because there was a wire going through it.
When Kikuta entered the game room, Complainant walked-
back toward another door in the room and Kikuta threw down the
crutches and tackled Complainant. By "tackled," Cousin meant
that Kikuta pushed and then fell on Complainant. Complainant
went face first into the glass door and fell. As Complainant
tried to get up, Kikuta hit Complainant with his fist "full on"
about four or five more times on Complainant's left cheek and on
Complainant's "nose a little bit." Complainant fell down again.
Kikuta hit Complainant three times to the back of the head.
Complainant tried to get up again, but Kikuta hit him maybe four
times to his left check and Complainant fell down again.
At this point, Complainant picked up the crutch and
held it in a defensive manner. Kikuta told Complainant he should
use the crutch against Kikuta and fight. Complainant did not do
anything or make any movements toward Kikuta with the crutch,
Cousin testified that Complainant was "kind of like backing off,"
holding the crutch, when Kikuta tackled Complainant again and
they fell "to the side of the wall." Complainant huddled up, and
Kikuta hit Complainant a couple more times. Cousin testified
that Kikuta may have hit Complainant in the head about fifteen
times.
On cross-examination, Cousin admitted he told a
detective after the incident that Kikuta hit Complainant in the
face four or five times and on the back of the head three times,
but not that Kikuta hit Complainant fifteen or more times.
Kikuta's counsel read out loud Cousin's statement, made under
oath, that Kikuta held up Complainant while he was punching him;
however, Cousin testified that he did not remember making the
statement,
Cousin and Complainant first went to the bathroom to
clean up Complainant, whose nose was bleeding. Cousin saw the
pieces of tooth that had chipped off. They then went into
Complainant's bedroom. Kikuta appeared at the bedroom door and
told Complainant to clean the game room. Complainant said to
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Kikuta, "Do you really expect me to listen to you after you just
hit me?," and Kikuta told Complainant to fight him. Kikuta
struck a fighter's pose, with his arms up, and said something
like, "Fight me again, Boy." Complainant said "No" and stayed
back.
After Cousin and Complainant cleaned the game room,
they went to the kitchen to clean dog pads. Kikuta and
Complainant began arguing. Kikuta told Complainant, "I can catch
you even with this broken leg, Boy."
Cousin testified that Complainant had never done
anything to Kikuta, acted threateningly or aggressively toward
Kikuta, hit or acted like he was going to hit Kikuta, or acted
like he was going to hit Kikuta with the crutch, moved toward
Kikuta with the crutch, or threatened Kikuta while holding the
crutch, In Cousin's opinion, Kikuta "started this" because he
began making terms for the bet and was the first one to make
physical contact.
C. Stephen Graner, M.D.'s testimony
Stephen Graner, M.D. (Dr. Graner) testified that he
examined Complainant at Pali Momi after the incident.
Complainant had a broken nose (bone fracture), bruised cheek,
chipped teeth, bruised forearm, and an injured wrist. Dr. Graner
recommended a splint for Complainant's wrist, acetaminophen or
Tylenol for pain, an ice pack for sore areas, and follow-up with
his doctor and dentist in the following few days. In
Dr. Graner's opinion, Complainant had sustained substantial
bodily injury because Complainant had a bone fracture.
Dr. Graner testified that the bone that was broken in
Complainant's nose was easy to break because it was fairly thin.
D. Kikuta's testimony
Kikuta's testimony was similar to Complainant's in some
respects; however, Kikuta also testified to the following.
Kikuta had been Complainant's father figure in the six
years he had known Complainant. when Kikuta met Complainant,
Complainant was an average student, but then Kikuta helped
Complainant with his school work and that changed. Over the
course of their relationship, Kikuta and Complainant would do
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father-and-son things together, such as go fishing and camping,
drive box cars and go-carts, and play football, basketball, and
baseball. Kikuta and Complainant did get into arguments when
Complainant was a teenager, and Kikuta had to reprimand him by
taking away his TV, computer, and video game privileges. Kikuta
had gotten used to Complainant giving him "attitude," and by the
time of the incident, it had gotten to the point where it just
irritated him. Kikuta loved Complainant and cared and provided
for him.
On the day of the incident, Kikuta asked Complainant to
feed the dog and clean the dog pad, which was where the dog
relieved itself. Kikuta testified that after Complainant did as
he was asked, Kikuta asked Complainant to put away the dog food
that Complainant had left out and fill up the dog's water bowl.
Complainant did as he was told.
At some point later, Kikuta asked Complainant to clean
up the dog stain. Kikuta thought the stain had been there for
maybe a day, but he was not sure. Complainant told Kikuta that
Complainant could not get the stain up. Kikuta told Complainant
that Kikuta could do it, and Complainant said, "You wanna bet?"
Ater they made the bet, Complainant was pretty mad and ran into
the play room and slammed the glass door.
Kikuta was getting cleaning supplies when he heard
Complainant slam the glass door. Kikuta went to the game room.
He was upset and his tolerance was getting very low because he
had told Complainant many times not to slam the door. lt was as
if Complainant had done it to get back at him. Kikuta called
Complainant's name, but Complainant was looking at a video and
did not answer him. Kikuta called his name again, and
Complainant did not respond; Complainant just ignored him.
Kikuta then entered the game room, stooped down, and
pushed Complainant, who was sitting down, on the shoulders, with
two hands. Kikuta was off-balance, and the crutches fell out
from under his arms. Kikuta pushed harder against Complainant
than he had intended to because he lost his balance, and
Complainant's head hit a door jamb behind him. Complainant
picked up one of the crutches with both hands, stood up, and
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swung it at Kikuta. Kikuta blocked the crutch, then hit
Complainant twice on the face. Kikuta had not aimed for
Complainant's face. Kikuta testified that "maybe -- you know,
like, he was holding onto it [the crutch] and I punched him twice
to try to make him let go of that crutch." Kikuta testified that
he punched in reaction to what had just happened and had not had
time to think about it. Kikuta calmly asked Complainant what
made him think he could do that, picked up his crutch, and left.
He was not mad. Kikuta did not see swelling or chipped teeth and
did not see Complainant's nose bleeding, although Complainant
said he was hurt. Kikuta testified that he did not know he had
hit Complainant that hard.
At the time of the incident, Kikuta was 5'7" tall and
weighed between 207 and 212 pounds. At the time of trial, he was
forty-three years old.
At no point later that day did Kikuta touch Complainant
or get into a kind of boxing stance. Kikuta did not chase
Complainant around the kitchen or tell Complainant that he could
still hurt or catch Complainant even though his leg was hurt.
Kikuta testified that during the incident, he was
afraid that Complainant would hurt him. Around two or three
months prior to the incident, Complainant had his Friend over to
the house. Complainant, Friend, and Kikuta were in the kitchen,
and Complainant was going to eat dinner. Kikuta told Complainant
to offer Friend some food. Complainant said, "why? I made it."
Kikuta told Complainant that maybe he should wait until Friend
left to eat. Complainant again said, "why? I made it," and
walked into the playroom. Kikuta went in after Complainant and
repeated that maybe Complainant should not eat dinner.
Complainant told Kikuta to leave him alone because his mom was
going to get mad. Kikuta tipped the bowl out of Complainant's
hand, and said "Stop eating" and "[M]aybe you shouldn't have
dinner tonight." Rice flew onto Complainant. Kikuta told
Complainant to clean up the food and put the bowl away.
Complainant yelled something, and Kikuta went into the
living room to watch TV on the couch with Complainant's
grandmother. while Kikuta was watching TV, Complainant took a
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nine-inch-long sashimi knife that had a big blade and went into
the dining room area where only he and Kikuta could see each
other. Complainant looked pretty mad and said, "Come on."
Kikuta told him to put the knife away right then. Complainant
again said, "Come on." After a pause, Kikuta told him to put the
knife away by the time Kikuta counted to three. Kikuta counted
to three, and Complainant put the knife away.
E. Jury instructions
Prior to trial, Kikuta filed Defendant's Proposed Jury
Instruction No. 2 regarding the parental discipline defense.
At trial, the family court and the parties' counsel
settled the jury instructions. with regard to the proposed
instruction on the parental discipline_defense, the deputy
prosecuting attorney (Prosecutor) argued it should not be given,
and Kikuta's public defender (Public Defender) disagreed. The
Prosecutor argued that Kikuta was precluded from asserting the
parental discipline defense because he had caused substantial
bodily injury to Complainant.6 The Public Defender conceded that
Kikuta had caused Complainant substantial bodily injury,
However, the Public Defender argued, whether the force Kikuta
used was designed to cause or known to create a risk of causing
substantial bodily injury, disfigurement, etc. under HRS § 703-
309 was a question for the jury to decide.
The family court, citing to State v. Matavale, 115
HaWafi l49, 166 P.3d 322 (2OO7),7 Stated that HRS § 707-7l2
6 In State v. CrOuSer, 81 Hawai‘i 5, 11, 911 P.2d 725, 731 (1996), the
HawaFi Supreme Court held that because the requirements of HRS § 703-309(1)
are set out in the conjunctive, the State need only disprove one element
beyond a reasonable doubt to defeat the justification defense.
7 In Matavale, the HawaFi Supreme Court stated the following with
regard to the legislative history behind HRS § 703-3091
In 1992, the legislature, in considering an amendment to HRS
§ 703-309(1) (1985), expressly recognized -- through the adoption
of a standing committee report by the Senate Judiciary Committee
-- that
the line between physical abuse and appropriate parental
discipline is a very subjective one. what one parent
considers discipline may seem abusive to another. Your
Committee had to consider how best to draw the line in the
context of the legal defense provided for parents and
(continued...)
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7(...continued)
guardians when determining guilt in a criminal trial. Your
Committee believes that the "gray areas" must be resolved by
not criminalizing such parental discipline, even if a
majority of the community would find the extent of the
punishment inappropriate.
Sen. Stand. Comm. Rep. No. 2493, in 1992 Senate Journal, at 1121
(emphases added). In its attempt to best "draw the line," the
legislature amended HRS § 703-309(1) (1985) to include the
following underscored new language in subsections (1)(a) and
(1)(b) and to remove the terms "death" and "gross degradation"
from subsection (1)(b):
The use of force upon or toward the person of another
is justifiable under the following circumstances:
(1) The actor is the parent or guardian or other
person similarly responsible for the general
care and supervision of a minor, or a person
acting at the request of the parent, guardian,
or other responsible person, and:
(a) The force is employed with due regard for the
age and size of the minor and is reasonably
related to the purpose of safeguarding or
promoting the welfare of the minor, including
the prevention or punishment of the minor’s
misconduct; and
(b) The force used is not designed to cause or known
to create a risk of causing substantial bodily
injury, disfigurement, extreme pain or mental
distress, or neurological damage.
(Emphases added.) See 1992 Haw. Sess. L. Act 210, § 1 at 554.
The legislature indicated that the purpose of the
aforementioned amendments was "to limit the amount of force that
parents and guardians can legally use in disciplining their
children to that which is reasonable or moderate." Sen. Stand.
Comm. Rep. No. 2208, in 1992 Senate Journal, at 1022 (internal
quotation marks omitted) (emphases added); Conf. Comm. Rep. No.
103, in 1992 House Journal, at 843. The amendments also brought
the subject statute "much closer to the formulation found in the
Restatement (Second) of Torts § 147 . ; . and that used by a
substantial majority of other jurisdictions." State v. Crouser,
81 HawaiH.5, 12, 911 P.2d 725, 732 (1996) (citation omitted). As
the conference committee report regarding the amendments makes
clear, the amendment to subparagraph (a) of subsection (1) was
intended to further clarify the level of force one may use
upon minors[.] In determining whether or not the level of
force is permitted under law, a court must consider the age
and size of the recipient and whether a reasonable
relationship exists between the force used and a legitimate
purpose as specified in the statute.
Conf. Comm. Rep. No. 103, in 1992 Senate Journal, at 783 (emphases
added). Also, according to the Senate Judiciary Committee, the
amendment to subparagraph (b) of subsection (1) was intended to
(continued...)
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had been amended in the past to limit the amount of force parents
and guardians could legally use in disciplining children. The
family court further stated that to allow Kikuta to assert the
parental-discipline defense on the basis that the force he used
was not designed to cause substantial bodily injury would allow
similarly situated defendants to assert the defense even if their
force caused neurological damage, burns of the second degree or
worse, major lacerations, or serious concussions, and that was
not in keeping with the legislative intent. The family court
refused to give the instruction.
II. STANDARDS OF REVIEW
VA. Parental Discip1ine Defense
Because the question of whether the force employed was
reasonably related to the welfare of the minor involves the
trial court's evaluation of mixed questions of law and fact,
the trial court's conclusion on this issue, insofar as it is
dependent upon the facts and circumstances of the case, is
reviewed on appeal under the clearly erroneous standard.
However, to the extent the conclusion is premised on the
court's interpretation of the applicable statute, the
conclusion is freely reviewable on appeal.
State V. Tanielu, 82 HaWafi 373, 380~8l, 922 P.2d 986, 993-94
(App. 1996) (citations omitted).
7(...continued)
lower the standard of harm
by lowering the level of risk, and reducing the permissible
level of injury to that which is less than "substantial" as
defined in section 707-700 of the Hawafi Penal Code. while
the permissible level of injury may still appear high, it is
clearly a lower and more appropriate threshold.
By using terms in the HawaiFi Penal Code, your
Committee believes that the standard is clearer for both the
police and the public to understand and follow.
Sen. Stand. Comm. Rep. No. 2208, in 1992 Senate Journal, at 1022-
23 (emphases added). The legislature, nevertheless, opined that
"the terms retained from the prior law must be reinterpreted by
the courts, since the changes affect the application of the rule
of construction applied in [State v. Deleon, 72 Haw. 241, 813 P.2d
1382 (1991)]." Sen. Stand. Comm. Rep. No. 2493, in 1992 Senate
Journal, at 1121. However, the legislature expressly indicated
that "the changes were not intended to create a standard under
which the result in Deleon would have been different. The force
used by the father in Deleon, as described in the decision, did
not exceed the permissible force under the new language." Id.
(emphases added).
Matavale, 115 Hawai‘i at 160-62, 166 P.3d at 333-35 (footnotes, brackets, and
ellipses in original omitted).
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B. Jury Instructions
ln a criminal trial, an "accused is entitled to an
instruction on every defense supported by the evidence, no matter
how inconclusive the evidence may be, provided that evidence
would support consideration of that issue by the jury." State v.
MCMi1len, 83 HaWafi 264, 265, 925 P.2d 1088, 1089 (1996). In
addition,
a defendant has the right to argue inconsistent defenses and
he or she would be entitled to have the jury instructed on
ostensibly inconsistent theories of defense if there is
evidence supporting the theories. He or she would be
entitled also to an instruction on a defense fairly raised
by the evidence, though it may be inconsistent with the
defense he advanced at trial.
State v. OrtiZ, 93 Hawafi 399, 404-05, 4 P.3d 533, 538-39 (App.
2000) (brackets in original omitted) (quoting State v. lto, 85
HaWaiU_44, 46, 936 P.2d l292, 1294 (App. 1997)).
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.
Error is not to be viewed in isolation and considered
purely in the abstract. lt must be examined in the light of
the entire proceedings and given the effect which the whole
record shows it to be entitled. ln that context, the real
question becomes whether there is a reasonable possibility
that error may have contributed to conviction.
lf 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.
State V. GOnSa1VeS, 108 HaWafi 289, 292-93, 119 P.3d 597, 600-01
(2005) (internal quotation marks, citations, and brackets
omitted; block quote format changed) (quoting State v. Arceo, 84
HaWafi 1, 11-12, 928 P.2d 843, 853-54 (1996)).
C. Statutory lnterpretation
"The interpretation of a statute is a question of law
reviewable de novo." Capua v. weyerhaeuser Co., 117 Hawafi
439, 44{4J, 134 P.3d i91, 196 (200a) (citing Fi@r v.
Holguin, 94 Hawa.i‘i 70, 76, 9 P.3d 382, 388 (2000))
(brackets, citations, and ellipses omitted). Statutory
construction is guided by the following rules:
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First, the fundamental starting point for
statutory interpretation is the language of the
statute itself. Second, where the statutory
language is plain and unambiguous, our sole duty
is to give effect to its plain and obvious
meaning. Third, implicit in the task of
statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be
obtained primarily from the language contained
in the statute itself. Fourth, when there is
doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity
exists. And fifth, in construing an ambiguous
statute, the meaning of the ambiguous words may
be sought by examining the context, with which
the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true
meaning.
Carlisle v. One (l) Boat, 119 HawaFi 245, 256, 195 P~3d
l177, 1188 (2008) (quoting ln re Contested Case Hearing on
Water Use Permit Application, 116 HawaFi 481, 489-90, 174
P.3d 320, 328-29 (2007)) (block quotation format altered).
State v. Woodfall, 120 HaWaFi 387, 39l, 206 P.3d 841, 845
(2009).
D. Plain Error/Rule 52(b)
HawaFi Rules of Penal Procedure Rule 52(b) states that
"[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
court." Therefore, an appellate court "may recognize plain error
when the error committed affects substantial rights of the
defendant." State v. Staley, 91 HawaiH.275, 282, 982 P.2d 904,
911 (1999) (internal quotation marks and citation omitted).
The appellate court "will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights." State v. Nichols, 111 HawaiU.
327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88
HawaFi 325, 330, 966 P.2d 637, 642 (1998)). An appellate
court's "power to deal with plain error is one to be exercised
sparingly and with caution because the plain error rule
represents a departure from a presupposition of the adversary
system -- that a party must look to his or her counsel for
protection and bear the cost of counsel's mistakes." Nichols,
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111 Hawafi at 335, 141 P.3d at 982 (quoting State v. Kelekolio,
74 Haw. 479, 5l5, 849 P.2d 58, 74-75 (1993)).
III. DISCUSSION
Kikuta contends the family court erred in failing to
instruct the jury on the parental discipline defense where there
was support in the evidence for such an instruction. He
maintains that despite the family court's finding that his force
against Complainant created substantial bodily injury, the court
should have given the jury the instruction because the nature and
not the result of the conduct determines whether the force used
as parental discipline is permissible. Kikuta cites to State v.
Miller, 105 HawaiH.394, 98 P.3d 265 (App. 2004), to support this
argument.
ln the instant case, because the family court concluded
that Kikuta was not entitled to a jury instruction on the
parental discipline defense based on the court's interpretation
of HRS § 703-309, we review the conclusion de novo. Tanielu, 82
Hawai‘i at 330-81, 922 P.2d at 993-94.
HRS § 703-309(1)(b) provides in relevant part that
"[t]he use of force upon or toward the person of another" by "a
parent or guardian or other person similarly responsible for the
general care and supervision of a minor" is justifiable if, among
other things, "[t]he force used is not designed to cause or known
to create a risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress, or neurological
damage."3 (Emphasis added.) ln the instant case, it is
undisputed that as a result of the incident, Complainant's nose
was broken and the broken nose constituted a substantial bodily
injury, The question on appeal is whether Kikuta was entitled to
assert the parental discipline defense because there was a
question as to whether his force was "designed to cause or known
5 The family court did not refuse to instruct the jury on the parental
discipline defense on the ground that the force was "employed with due regard
for the age and size of the minor and [was] reasonably related to the purpose
of safeguarding or promoting the welfare of the minor including the prevention
or punishment of the minor's misconduct." HRS § 703-309(l)(a). lt is not
disputed that Kikuta offered evidence to satisfy this element of the parental
discipline defense.
\
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to create a risk of causing substantial bodily injury," HRS
§ 703-309(1)(b) (emphasis added), or whether the fact that the
force he used caused substantial bodily injury precluded him from
asserting the defense.
There is a question of fact as to whether Kikuta's
force against Complainant was designed to cause or known to
create a risk of causing substantial bodily injury. At what
point during the incident Kikuta broke Complainant's nose is
unclear. Evidence adduced at trial showed that Kikuta pushed
Complainant backward against a door jamb or glass door, allegedly
tackled him twice, punched him in the face anywhere from two to
ten times, and allegedly punched him in the back of the head two
or three times. According to the plain language of HRS § 703-_
309, what type and degree of force broke Complainant's nose and
whether that force was designed to break his nose or known to
create a risk of doing so was a question for the jury, as fact
finder, to decide. See State v. Romano, 114 HawaiH 1, 8, 155
P.3d 1102, 1109 (2007) ("Matters of credibility and the weight of
the evidence and the inferences to be drawn are for the fact
finder.") Hence, the family court erred by not submitting the
instruction on the parental discipline defense to the jury,
Miller supports our holding. There, this court
affirmed the Family Court of the Third Circuit's conviction of
Miller for abuse of a family member. Miller, 105 HawaFi at 402,
98 P.3d at 273. ln finding that the State had rebutted Miller's
parental discipline defense, the Third Circuit Family Court
distinguished between the nature and result of the actor's use of
force pursuant to HRS § 703-309, stating that even though the
complainant did not suffer any of the prohibited injuries set
forth in HRS § 703-309, Miller's "striking the victim about the
head did create the risk of causing substantial bodily injury or
neurological damage." Miller, 105 Hawafi at 399, 98 P.3d at
270. ln the instant case, it follows that conversely, even
though Kikuta caused Complainant to suffer substantial bodily
injury, a jury may have found that Kikuta did not use force that
was "designed to cause or known to create a risk of causing"_
substantial bodily injury. HRS § 703-309(1)(b).
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The legislative history described in Matavale does not
change this result.
Because we vacate and remand for a new trial, we choose
not to address Kikuta's second point that the family court
plainly erred in failing to instruct the jury it was required to
determine whether the Assault in the Third Degree had been
committed during a fight or scuffle entered into by mutual
consent.9
IV. CONCLUSION
The Judgment of Conviction and Sentence filed on
October 1, 2008 in the Family Court of the First Circuit is
vacated, and this case is remanded for a new trial consistent
with this opinion.
DATED: Honolulu, Hawafi, May 18, 2010.
On the briefs:
Jon N. lkenaga,
Deputy Public Defender,
for Defendant-Appellant. ` Jz>
Anne K. Clarkin, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.
Associate Judge
9 Kikuta did not request such an instruction.
18