concurring.
I concur in the result of this case.
Defendant failed to establish that an “administrative order or administrative grant of permission” was the basis for his action under the mistake of law defense under Hawai'i Revised Statutes (HRS) § 702-220(3) (1993).1
Also, because Defendant testified that he thought “it was a little bit funny” and “chuckled” when the police officer allegedly challenged him and his passenger to a fight, I believe it was within the trial court’s discretion to find, under the facts of this case, that *155Defendant did not reasonably believe he was in danger of “imminent harm” under the “choice of evils” defense in HRS § 703-302(1) (1993).
However, I must disagree with the majority’s reliance on State v. Kealoha, 9 Haw.App. 115, 826 P.2d 884 (1992) with respect to the “choice of evils” defense. I do not believe that Kealoha is viable authority under HRS § 703-302 because the common law requirements set forth in Kealoha conflict with the express language of HRS § 703-302. In that connection, HRS § 701-102(2) (1993) provides, “The provisions of this Code govern the construction of and punishment for any offense set forth herein committed after the effective date, as well as the construction and application of any defense to a prosecution for such an offense.” (Emphases added.) The Hawai'i Penal Code (the Code) was adopted and took effect on January 1, 1973, prior to Kealoha and the instant case. 1972 Haw.Sess.L.Act 9, § 100 at 32. After that date, the express language of the Code is controlling.
Under HRS § 703-302(1), the justification defense is satisfied when the following factors are established: the defendant (1) reasonably believes (2) the conduct is necessary (3) to avoid harm or evil to the actor or another which is (4) imminent, and (5) the harm or evil sought to be avoided is greater than the violative conduct. However, the majority, as a matter of law, redefines the “reasonably believes” factor to specifically require that there be no “third alternative available” and that the conduct be “reasonably designed to actually prevent the threatened greater harm.” Kealoha, 9 Haw.App. at 118, 826 P.2d at 886 (emphasis added). These requirements, first posited in Kealoha and applied here, are not included in the express language of HRS § 703-302.
Such requirements go beyond the factors denominated under the statute. They impose additional burdens on a defendant, not authorized, and therefore, I cannot agree with the majority’s reformulation of the “choice of evils” defense statute.
. I would not reach, and therefore, do not necessarily agree with the majority's analysis of the "administrative grant of permission” language in Hawai'i Revised Statutes (HRS) § 702-220(3) (1993). Defendant did not assert the mistake of law defense in his brief and did not claim that he relied on an "administrative order.” Defendant, however, did argue that the transcript indicated that he had "permission to leave,” and thus, Defendant did not have the requisite intent under HRS § 710-1027 (1993) to disobey the officer’s order to stop. The majority opinion characterizes Defendant's argument as one under HRS § 702-220(3) (1993).
Defendant did assert the "choice of evils” defense under HRS § 703-302 (1993) in his brief.