concurring in part and dissenting in part.
I concur with the majority’s conclusion that the choice of evils instruction of the first circuit court (the court) was erroneous because it did not expressly set forth the statutory elements of that defense contained in Hawai'i Revised Statutes (HRS) § 703-302(l)(a) (1993). I also concur that the erroneous instruction was harmless because Defendant-Appellant Malakai Maumalanga (Defendant) did not present any evidence to satisfy the statutory elements of the defense. However, because I regard the majority’s proposed addition of common-law “considerations” to the elements of the choice of evils defense as unwarranted and unwise, with all due respect, I must disagree with the majority’s formulation of that instruction.
I.
HRS § 703-302(l)(a) states that “[cjonduct which the actor believes is necessary to avoid an imminent harm or evil to the actor or to another is justified provided that ... the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged[.]” In contrast to this language, the court instructed the jury on the choice of evils defense as follows:
In order for the “choice of evils” defense to apply, four conditions must be satisfied. First, the defendant must have reasonably believed that there was no legal alternative available to him. Second, the defendant must have reasonably believed that the harm sought to be prevented was imminent or immediate. Third, the defendant’s conduct must have been reasonably designed to actually prevent the threat of greater harm. Fourth, the harm sought to be avoided must have been greater than *108the harm sought to be prevented by the law defining the offense charged.
(Emphases added.)
As the majority points out, the second and fourth elements given by the court were derived from HRS § 703-302(l)(a), and the first and third elements followed this court’s prior holdings in State v. Kealoha, 9 Haw.App. 115, 826 P.2d 884 (1992) and State v. DeCastro, 81 Hawai'i 147, 913 P.2d 558 (App.1996). I agree with the majority that the court’s instruction was erroneous because it did not “expressly set forth the statutory requirements pursuant to HRS § 703-302.” Majority opinion at 106, 976 P.2d at 419-20.
II.
I also concur with the majority’s conclusion that the error was harmless. Because Defendant was acquitted of charges of Attempted Murder in the First Degree, Attempted Murder in the Second Degree, and Terroristic Threatening in the First Degree, the only conviction on appeal is Defendant’s conviction for Place to Keep Firearms, HRS § 134-6(c) (1993). HRS § 134-6(c) provides, in relevant part, that as a general matter, “all firearms and ammunition shall be confined to the possessor’s place of business, residence, or sojourn[.]” In explaining the choice of evils allegedly faced by Defendant, defense counsel asserted in closing argument that “the only reason why [Defendant took] those guns out of that house and [took them] down to his work place is because Taylor [Wagen (Wag-en), a co-worker] calls him up and says, We are going to get robbed. Can you bring some protection? Help us out.’ ” (Emphasis added.) It was then argued that the harm Defendant sought to avoid was “immediate” because the robbery of EM Tours “could have happened anytime that night. So it was immediate throughout that night[.]” Defense counsel reiterated that Defendant “had those guns only because [sic] for one reason that night, [which] was because [Wagen] asked him to bring them to the work place to protect them.”
This was the sole argument Defendant made to the jury with respect to the choice of evils defense. As such, I believe the jury could have properly rejected this defense because there was no evidence presented to demonstrate that Defendant believed it was necessary, as HRS § 703-302(l)(a) requires, to carry one of the guns with him when he left EM Tours, in order to avoid an imminent robbery of EM Tours. Defendant did not testify as to why he took one gun with him when he left EM Tours, and left one gun with Wagen at the EM Tours office during that time.
On appeal, Defendant appears to offer a new theory about his choice of evils defense:
There was evidence that: (1) both [Defendant] and his family had been harassed by the Pinoy Gang; (2) the police had failed to render help under these circumstances; and, (3) [Defendant] knew that a member of the Pinoy Gang had shot someone in a park in a drive-by shooting....
A reasonable juror could have found that under the “plain language” of [HRS § 703-302] ... [Defendant], in light of the above facts, reasonably believed it necessary to carry a handgun in order to protect himself from danger that could befall him at any time by a member of the Pinoy Gang. The harm sought to be avoided in this case was [Defendant’s] death, which is greater than the general harm sought to be avoided by the law defining the offense of Place to Keep Firearms.
However, Defendant never testified that he took the gun with him when he left EM Tours in order to protect himself or anyone else from a member of the Pinoy Gang. Although Defendant testified that Pinoy Gang members had been “harassing” him and his family, and Defendant knew that a member of that gang had shot someone from Defendant’s former gang earlier in the evening, there is no testimony by Defendant that he took the gun with him when he left EM Tours because he was scared by the Pinoy Gang or by the earlier shooting, and thus needed the gun to protect himself.
In the absence of such testimony, there would be no basis for the jury to have found that Defendant reasonably believed it was necessary to carry a gun when he left EM Tours in order to avoid imminent harm inflicted by the Pinoy Gang. In fact, Defendant *109testified that he “remember[edJ [he] had the gun on [him]” when he was attempting to hide from someone at the gasoline station whom he suspected was involved in the earlier shooting. (Emphasis added.) This testimony belies any assertion now that Defendant took the gun with him for protection from the Pinoy Gang, since Defendant did not even “remember” he had the gun with him until long after he left the EM Tours office.
Given the testimony presented, the effect of the erroneous instruction was harmless. Even if the court had given an instruction which tracked the language of HRS § 703-302(l)(a), there was no evidence to demonstrate that Defendant believed carrying the gun with him while he was away from EM Tours would avoid either the imminent harm of a robbery to EM Tours or the imminent harm posed by members of the Pinoy Gang.
III.
I note, further, that there are three limitations on the choice of evils defense set forth in HRS § 703-302(1), which should be considered by a trial court in giving an instruction on choice of evils. Under HRS § 703-302(l)(b), the court is not to instruct the jury on the defense if “the [Hawai'i Penal Code (HPC) ] [ ] or other law defining the offense provides exceptions or defenses dealing with the specific situation involved[.]” Similarly, no instruction may be given where “[a] legis-^ lative purpose to exclude the justification claimed ... plainly appear[s].” HRS § 703-302(l)(e).
The third limitation, contained in HRS § 703-302(2), provides that if the state of mind for the offense charged is either reckless or negligent, the court must instruct the jury that the choice of evils defense is not available if the jury finds that the defendant was (1) reckless or negligent in bringing about the situation requiring a choice of evils, or (2) reckless or negligent in evaluating the necessity for his or her conduct.
In this case, the instruction given for the offense of Place to Keep Pistol or Revolver set forth “intentionally, knowingly, or recklessly” as the alternative states of mind which would satisfy this element of the offense. (Emphasis added.) However, apparently no instruction was given advising the jury of the limitation set forth in HRS § 703-302(2). Plaintiff-Appellee State of Hawai'i (the State) argued only that Defendant acted intentionally or knowingly. Because Defendant testified he did not remember he had the gun until the incident at the gasoline station, there was evidence from which a juror might find Defendant was reckless in bringing about the precipitating situation. Thus, a “reckless” state of mind would have been sufficient to satisfy the state of mind element, and the court should have instructed the jury in accordance with HRS § 703-302(2).
IV.
As previously stated, I cannot concur that a jury instruction on the choice of evils defense set forth in HRS § 703-302(l)(a) should include common-law “considerations.” The majority proceeds beyond the plain language of the statute and directs that the jury should be instructed on additional “considerations for purposes of the first requirement of [HRS § 703-302(l)(a) ]” as follows:
[A] person does not reasonably believe that it is necessary to commit a crime to avoid an imminent harm or evil to himself [or herself] or others when one or more of the following is a fact:
(a) A third alternative that did not involve the commission of a crime was reasonably available to the person;
(b) The crime committed was not reasonably designed to actually avoid the harm or evil sought to be avoided; or
(c) The harm or evil sought to be avoided was not imminent when the person committed the crime.
Majority opinion at 106, 976 P.2d at 420 (emphases added) (quoting DeCastro, 81 Hawai'i at 153-54, 913 P.2d at 564-65). In this manner, the majority injects into the statutory definition of the defense additional elements derived from the “ ‘common law* formulation set forth in Kealoha arid DeCastro.” Id. at 105, 976 P.2d at 418. In my view, this *110approach is generally unwarranted for several reasons.1
V.
The Kealoha and DeCastro formulations of the defense no longer apply because they were superseded when the HPC was adopted. Following the adoption of the HPC in 1973, “the express language of the [HPC] was controlling.” DeCastro, 81 Hawai'i at 155, 913 P.2d at 566 (concurring opinion).
Second, our construction of HPC provisions must be grounded in the words used. “[I]n order to promote justice and effect the objects of the law, all of the [HPC’s] provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” HRS § 701-104 (1993). With all due respect, I believe appending common-law “considerations” to the statute takes us far afield from the governing proposition of HRS § 701-104. Construing the statute as written and using as an aid thereto, the commentary to HRS § 703-302 best harmonizes our interpretation with the intent of the drafters of the HPC.
Further, were it the intent of the legislature to incorporate additional considerations limiting the applicability of the defense, it could have done so, and I believe it would have done so as it did in subsection (3) of HRS § 703-3022 in connection with the offense of escape.
The effect of the considerations is to further restrict the use of the defense. See discussion infra. This ostensibly is based upon the majority’s belief that the language of HRS § 703-302 is “general and objective.” Majority opinion at 102, 976 P.2d at 416. However, restrictions as were believed appropriate by the drafters of the HPC have already been incorporated through “numerous safeguards” in the statute:
[TJhere are numerous safeguards built into [HRS] § 703-302. The danger of causing the necessity of choosing between evils must be imminent.' Moreover, subsection (2) provides that if the necessity of choosing between harms or evils results from the defendant’s recklessness or negligence, the defense is not available in a prosecution of any offense for which recklessness or negligence, as the case may be, suffices for conviction.
It is no defense under this section that the defendant thought compliance with the statute immoral or unwise; the legislative decision to make particular conduct criminal is to be given great weight.
Commentary on HRS § 703-302, at 53.
Thus, even beyond the requirements of necessity, imminence, and greater harm, and the recklessness or negligence exception, the defense is not available if (1) specific .exceptions otherwise falling within the purview of the defense are included within the definition of an offense, or (2) a legislative purpose to exclude the defense exists. See HRS § 703-302(l)(b) and (c). The HPC thus includes “numerous safeguards” against its improvident use. Commentary on HRS § 703-302, at 53.
Finally, I do not regard the additions proposed by the majority as wise. This court has observed that “[t]he purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict.” McKeague v. Talbert, 3 Haw.App. 646, 657, 658 P.2d 898, 906 *111(1983). Accordingly, “[i]n his [or her] instructions, the trial judge should inform the jury as to the law of the case applicable to the facts in such a manner that they may not be misled.” Id. (emphasis added). At best, adding these considerations in a jury instruction on choice of evils will tend to confuse and mislead the jury. At worst, including such common-law considerations “redefines the [statutory] ‘reasonably believes’ factor,” beyond our power to do so. DeCastro, 81 Hawai'i at 155, 913 P.2d at 566 (concurring opinion) (some internal quotation marks and citations omitted).
VI.
The majority maintains that its considerations “do not add additional elements to a choice of evils defense because they are merely interpretational guidelines to assist a jury or court.” Majority opinion at 104, 976 P.2d at 418.
A.
Plainly, the “considerations” are “additional elements.” By requiring that the jury be additionally instructed “with respect to requirement (1) [of HRS § 703-302]” that “a person does not reasonably believe that it is necessary to commit a crime” (emphasis added) if “one or more” of three considerations “is a fact,” majority opinion at 106, 976 P.2d at 420 (quoting DeCastro, 81 Hawai'i at 153-54, 913 P.2d at 564-65), the majority has further defined the term “reasonably believes” as a matter of law. Under this new instruction, any one of the three considerations, if established as “fact,” is deemed to preclude a finding of “reasonable belief’ and thus use of the defense.
Of these three considerations, two are additional elements that now must be satisfied by the defendant in addition to those already imposed under HRS § 703-302(l)(a). Despite the majority’s assertion that no elements are being added, even the State acknowledges in its answering brief that in Kealoha and DeCastro this court “interpreted [HRS § 703-302(l)(a) ] to include two additional elements that must be satisfied in order for the ‘choice of evils’ defense to apply[:] ... (1) that a third alternative not exist; [and] (2) that [a] defendant’s actions be reasonably designed to actually prevent the threatened greater harm.” (Emphasis added.) The “two additional elements” cited by the State are the very elements included in the majority’s proposed instruction as the first and second considerations.
B.
As is equally evident, the considerations are not “merely interpretational guidelines,” majority opinion at 104, 976 P.2d at 418, since the considerations are in fact the basic elements of the common law, pre-HPC definition of the choice of evils defense from Keal-oha. That definition was supplanted by HRS § 703-302(l)(a). However, under the guise of defining the element “reasonably believes,” the majority now incorporates that common law formulation into the HPC definition of the defense. Consequently, the instruction clashes with the express terms of HRS § 703-302(l)(a) and, therefore, is not “merely interpretational.”
VII.
In addition to my overall concerns with the majority’s proposed instruction, I have specific concerns with respect to each of the three considerations.
The first consideration, in effect, places upon a defendant the burden of adducing evidence that there was no “third alternative” or, assuming the existence of one, that such alternative was not “reasonably available.” Hence, the first consideration adds an element not expressly mandated by the statute, and thus limits the applicability of the defense. It is one thing to allow argument on a “third alternative” or any number of alternatives in final argument with respect to the “necessary” conduct element if such alternatives present themselves under the particular circumstances of the case; it is quite another thing to instruct the jury that such matters must be disproved under the evidence before the jury may consider the defense. See discussion infra part IX.
Additionally, the language of HRS § 703-302 and its commentary noticeably fail to *112mention anything about availability of alternatives. This consideration is not noted as one of the “numerous safeguards built into [HRS § ] 703-302[.]” Commentary on HRS § 703-302, at 53. The commentary notes that “[i]f the defendant’s conduct was not necessary, if one evil was not greater than the other, if the defendant exceeded the reasonable bounds of intelligence and morality, the defendant may be convicted for the defendant’s conduct notwithstanding the defendant’s attempts to justify the defendant’s actions.” Id. Hence, in contrast to the majority’s instruction, the statute does not indicate that the choice of evils defense should fail if the defendant had a third alternative available, so long as a defendant’s belief that the conduct chosen was necessary, is objectively reasonable.3
VIII.
In my view, the second consideration, regarding whether the defendant’s act was “reasonably designed to actually avoid the [imminent] harm or evil[,]” also is unwarranted because it, too, is not dictated by HRS § 703-302(l)(a).
As with the first consideration, the second effectively adds a requirement not found in the text or justified in the commentary to the section. See DeCastro, 81 Hawai’i at 155, 913 P.2d at 566 (concurring opinion).
Further, the second instruction engenders confusion for the jury in reconciling the statutory requirement that the defendant believes his or her conduct was “necessary,” and the consideration that his or her conduct was not “designed to actually avoid the harm.” (Emphasis added.) On one hand, the term “necessary” connotes conduct appropriate or suitable to the circumstances, thus directing the jury to deliberate on whether it was objectively reasonable for a defendant to believe that his or her conduct was appropriate or suitable under the circumstances. By contrast, the words “actually avoid” impart to the reader the sense that the conduct chosen by a defendant must be one certain or nearly certain of success in avoiding harm, rather than one of objective reasoned choice as HRS § 703-302 would appear to require.
Accordingly, in seeming to place upon the defendant the burden of demonstrating certainty of success regarding the chosen conduct, the second consideration raises the qualifying threshold for the defense from conduct the actor reasonably believes was “necessary,” to conduct the actor reasonably believes was certain to avoid the harm. To move from a standard of reasonable belief in the necessity of engaging in the prohibited act to one requiring belief that the act will actually avoid the harm is to court abolishment of the defense altogether:
Finally, many commentators have had difficulty with the concept of necessity [ (or choice of evils) ] because of the possibility-of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee the exact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is not taken, then it can never be admitted. A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person’s uncertainty. Our only point is that the threat of criminal punishment is unneeded here.
Commentary on HRS § 703-302, at 54 (emphasis added) (internal quotation marks, citation, and footnote omitted).
*113IX.
As to both the first and second considerations, an instruction phrased in terms of what “reasonable belief’ is “not,” and made a part of the defense instruction, implicitly places the defendant in the role normally assigned under the HPC to the prosecutor. The prosecutor is charged with proving “facts which negative the defense.” Commentary on HRS § 703-301, at 52. But the three considerations which practicably must be disproved by a defendant to prove his or her “reasonable belief’ are those very facts which would negative the choice of evils defense. Thus, both the existence of legal alternatives to the action chosen by a defendant and the absence of a belief in actual avoidance of the harm, which would be expected to be the prosecution’s burden to prove under the proposed instruction, are shifted to the defendant. Consequently, I believe the instruction also improperly alters the allocation of trial functions under the HPC.
X.
Finally, the third proposed consideration, that is, that the harm or evil sought to be avoided was not imminent, is both repetitive and confusing. The beginning of the instruction, which generally tracks the statutory language of HRS § 703-302(l)(a) and precedes the listing of considerations, provides that the defendant must have engaged “in conduct which he or she believes to be reasonably necessary to avoid an imminent harm or evil.” As such, the requirement of imminence will be communicated to the jury and there is no need for another instruction reiterating that the harm or evil sought to be avoided must be imminent. The drafters of Model Penal Code (MPC) § 3.02 (Official Draft and Revised Comments 1962) did not expressly require that the harm or evil be imminent because it was thought that “[sjuch a requirement unduly emphasizes one ingredient in the judgment that is called for at the expense of others just as important.” MPC § 3.02 comment 3, at 17. While the Hawai’i legislature has included an imminence requirement in the choice of evils statute, an additional jury instruction which again refers to imminent harm places undue emphasis on that requirement.
Moreover, the third consideration will only tend to confuse the jury because that consideration is cast in the negative, that is, that the harm “was not imminent” (emphasis added), in contrast to the affirmative form of the same requirement in the earlier part of the instruction. Accordingly, the jury should not be instructed on the third consideration set forth by the majority.
XI.
In sum, the first and second considerations added to the jury instruction by the majority dictate requirements that “go beyond the factors denominated under the statute [and] impose additional burdens on a defendant, not authorized[.]” DeCastro, 81 Hawai'i at 155, 913 P.2d at 566 (concurring opinion). The third consideration unduly emphasizes the imminent element of the defense over the other elements. All three considerations will be confusing to the jury rather than “inform the jury as to the law of the case applicable to the facts in such a manner that they may not be misled.” McKeague, 3 Haw.App. at 657, 658 P.2d at 906.
For these reasons, I respectfully dissent.
. I do not find the cases cited by the majority to be persuasive since none of them squarely considered the appropriate instruction to he given a jury nor considered all the points raised in this dissent.
. In 1986, the Hawai'i legislature added subsection (3) to Hawai'i Revised Statutes (HRS) § 703-302 (1993), qualifying the choice of evils defense for charges of escape. In this subsection, the legislature added conditions similar to the "no alternatives” consideration. Hence, in order to assert a choice of evils defense, a defendant charged with violating HRS §§ 710-1020 or -1021 (1993) must prove, inter alia, that neither the prison authorities nor the courts were available as an alternative to escape. Subsection (3) illustrates that the legislature was capable of incorporating specific limiting elements, such as a "no alternatives” requirement, if it chose to do so. The fact that a similar requirement is not expressly set forth in HRS § 703-302(1) indicates, in my opinion, that no such requirement was intended for defendants charged with crimes other than escape.
. The term "believes” in HRS § 703-302 means "reasonably believes." See HRS § 703-300 (1993). This definition, as provided in HRS § 703-300, was intended by the legislature to incorporate a "reasonable [person] standard.” Supplemental Commentary on HRS § 703-300.