***      FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER     ***




                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-13-0005595
                                                                22-DEC-2015
                                                                10:02 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

           STATE OF HAWAII, Respondent/Plaintiff-Appellee,

                                      vs.

        JONATHAN HENLEY, Petitioner/Defendant-Appellant.
________________________________________________________________

                               SCWC-13-0005595

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-13-0005595; CR. NO. 13-1-0635)

                             DECEMBER 22, 2015

      McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
       CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                          OPINION BY McKENNA, J.

I.    Introduction

       Petitioner/Defendant-Appellant Jonathan Henley (“Henley”)

appeals from the ICA’s judgment, which affirmed the Circuit

Court of the First Circuit’s1 (“circuit court”) Judgment of

Conviction and Sentence, which adjudged Henley guilty of Assault

in the Third Degree, sentenced him to 30 days’ imprisonment, and

1
       The Honorable Patrick W. Border presided.
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER      ***


increased bail from $200.00 to $2,000.00 cash only pending

execution of sentence.     On certiorari, Henley asserts (1) that

insufficient evidence supported his conviction; (2) that the

circuit court abused its discretion in increasing his bail

pending appeal; and (3) that the circuit court abused its

discretion in sentencing him to jail for a first offense.               Upon

reviewing the record, we conclude (1) that the circuit court

plainly erred in failing to instruct the jury on mutual affray;

and (2) that the district court abused its discretion in

increasing Henley’s bail from $200.00 to $2,000.00 cash only

pending appeal.     We do not reach the issue of whether the

circuit court abused its discretion in sentencing Henley to jail

for a first offense.     Because there was sufficient evidence for

the conviction, this matter is remanded to the circuit court for

further proceedings consistent with this opinion.

II.   Background

      A.   Proceedings in Circuit Court

            1.   Complaint and Jury Demand

      Henley was charged by Complaint with “intentionally,

knowingly, or recklessly caus[ing] bodily injury to Gary K.

Massey, thereby committing the offense of Assault in the Third

Degree, in violation of Section 707-712(1)(a) of the Hawaii




                                     2
***     FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER     ***


Revised Statutes.”2      He was represented by court-appointed

counsel.    Henley demanded a jury trial and was bound over to the

circuit court.

            2.    Jury Trial

      A two-day jury trial took place.         The State called two

witnesses:       the complaining witness, Gary Massey (“Massey”), and

a police officer who responded to the scene of the alleged

assault.    Henley called one witness, his friend Kalanikapu Copp

(“Copp”), who was with him at the time of the alleged assault.

Henley also testified in his own defense.

                   a.   Testimony of Gary Massey

      The complaining witness, Massey, testified that he was 68

years old and worked as a security officer for the Colony Surf

Hotel on the evening of November 9, 2012.           He arrived at 10:30

p.m. to relieve another security officer, who told him that

there was a party in Room 205 that generated two noise

complaints and reports of graffiti in the stairwell.             The other

security officer had called the Honolulu Police Department.

When police officers arrived, they and Massey went to Room 205

and dispersed the party guests.           The police officers left, and

Massey went to the 19th floor and walked down the stairwell, as

part of his normal duties.       Around 12:30 a.m., he heard more

2
      Hawaii Revised Statutes (“HRS”) § 707-712(1)(a) (2014) provides, as it
did at the time of the alleged offense, “A person commits the offense of
assault in the third degree if the person . . . [i]ntentionally, knowingly,
or recklessly causes bodily injury to another person[.]”

                                      3
***     FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER        ***


party noise coming from Room 205 and called the police again.

Together, they cleared the room once more.

       Massey testified that an officer told him to escort two

individuals off the property.        Those individuals were Henley,

who had a guitar strapped onto his back, and Copp, Henley’s

friend.    As the two were descending the stairs, they called

Massey a “fucking faggot haole” and told him to “go back to

[his] gay country.”      According to Massey, as Copp exited the

stairwell, Massey held the door open, and Henley head-butted

Massey above the right eye, causing Massey to feel pain.             Massey

fell backwards and hit the ground, while Henley threw punches at

him.    When Massey was on the ground, Henley stood over him with

a foot on either side of him; Massey then reached up and grabbed

Henley’s left testicle and squeezed it.          Henley screamed and

jumped off of Massey.      At some point during this encounter,

Massey was kicked or punched in the left ear.

       Henley and Copp then ran into Kapiolani Park, and Massey

alerted the police officers, who were still upstairs on the

second floor, that he had been assaulted.          The police officers

drove through Kapiolani Park and located Henley and Copp.

Massey then positively identified Henley as his assailant.               On

cross-examination, Massey admitted that Henley and Copp were

voluntarily leaving the premises when Massey was following them,

and that Massey could have remained behind them at a distance.

                                      4
***      FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


                  b.   Testimony of Officer Nicholas Muna

       The State also called Honolulu Police Department patrol

officer, Nicholas Muna, who testified that he was called to Room

205 twice on the night of November 9, 2012 to disperse a loud

party.    After the second call, as he was talking to the renter

of Room 205, he heard a yell for help coming from downstairs.

He ran downstairs to find the security officer flagging him down

and pointing towards Kapiolani Park, saying, “[T]hose two guys,

they just attacked me.”       Officer Muna got into his patrol car

and drove through the park.        When two males ran out from behind

a tree, Muna detained them.

       Later, Muna spoke with Massey, who related that he escorted

the two males off the property when they started arguing with

him.    The argument escalated, and Massey was punched and head-

butted.    Muna testified that Massey told him that after Massey

fell onto his back, he was punched again in the left ear.

Massey reported pain to his face, and Muna observed a small cut

above Massey’s left ear.        On cross-examination, Muna testified

that he would never direct Massey to escort people off the

property because he would not want to be responsible if Massey

were injured.

                  c.   Testimony of Kalanikapu Copp

       Henley called Copp, his classmate and friend of two or

three years, to testify in his defense.           Copp testified that, on

                                       5
***      FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER      ***


the night in question, he and Henley were at the Colony Surf

Hotel for a friend’s birthday party.            They were taking turns

playing Henley’s guitar at the party.            The first time the party

was dispersed, Massey and four or five police officers showed

up.    Copp stayed behind to use the bathroom, and Henley left the

party.    Copp testified that the police officers gave him

permission to stay, and Copp called Henley to return to Room

205.    Henley returned, accompanied by a few other people.               They

were playing music on the speakers when Massey and the police

officers returned and told Henley and Copp to leave.

       Copp and Henley exited Room 205 and passed Massey, who had

a “real smug look on his face.”            Henley told Massey, “I bet you

feel real big right now just bossing us around,” and Copp told

Massey “F you.”      Copp’s comment “kind of set [Massey] off,” so

Massey followed them as they were descending the stairwell and

called them “hippies” and “faggots.”            Copp went through the

doorway at the bottom of the stairs first.            He turned back and

saw Massey grab Henley “on the arm and . . . kind of jerk him

forward.”    Henley then turned around and pushed Massey in the

solar plexus.     Massey fell.     When he got up, he told Henley,

“[Y]ou’re going to get it now,” and tried to tackle Henley.

Massey tried to put Henley in an “arm bar or a choke.”              At this

point, Copp punched Massey once, but Massey did not let Henley

go, so Copp jabbed Massey three more times.            Copp also saw

                                       6
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER    ***


Massey grab Henley’s testicles.          Massey let go of Henley but was

still clinging onto Henley’s shirt as Henley attempted to leave.

Copp “karate chopped” Massey’s hand, causing Massey to finally

let go of Henley.

      Copp and Henley then ran into Kapiolani Park.          Massey

continued to pursue them, so Copp gave Massey “a little push

kick just right to his midsection[.]”          Copp and Henley hid from

Massey in a banyan tree and were ultimately discovered by the

police.   Copp testified that he did not see Henley head-butt

Massey, although he did see Henley push Massey in the solar

plexus.   Copp testified that he was the one who punched Massey,

probably causing the scratch to Massey’s left ear.

                d.    Testimony of Jonathan Henley

      Henley took the stand.     He testified that he worked in

telecommunications.     According to Henley, he had just turned 19

on November 8, 2012, and he was at the Colony Surf Hotel to

celebrate multiple birthdays, including his own.           He had brought

along his guitar that he constantly carries around with him.

Henley stated that there was no alcohol at the get-together.             He

and Copp were planning on sleeping over.          After arriving at the

party, they “jammed” for at least two hours.          The police and a

security officer ended the party, and Henley left by himself.

He saw the security officer arguing with a large group of

people.   Copp then called Henley and told him they had

                                     7
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER    ***


permission to return to Room 205 and stay the night.            Henley

returned with five others, and they played music on the stereo

system before the police and security officer returned.            The

security officer accused Copp and Henley of “br[inging] the

party back, . . . start[ing] up the music, . . . [and] hanging

off the [lanai.]”    Copp and Henley were directed to leave.

      Copp and Massey started arguing, and Massey followed Copp

and Henley out of the room and to the stairwell.           Massey called

Copp and Henley “faggots,” “hippies,” “punks,” and “ignorant

children,” and Copp told Massey to “fuck off.”          Copp exited the

door at the bottom of the stairs, and Henley was about to exit

when Massey “grabbed [Henley] from the back but like on the

upper arm.”   Henley “just react[ed]” and “shoved [Massey]

away[.]”   Massey let go but then tried to tackle Henley.           Massey

did not succeed, so he then “bailed towards the ground and

grabbed [Henley’s] balls.”      Copp saw what was happening, so he

hit Massey a few times until Massey released Henley.

      Copp and Henley were leaving the property when they heard

Massey yelling for help.      They ran towards a tree in order to

talk and regroup.    There they were apprehended by the police.

Henley emphasized in his testimony that he did not head-butt or

hit Massey, but that he did push Massey in the chest.            After

Henley’s testimony, the defense rested.



                                     8
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER     ***


           3.   Jury Instructions

      The State requested a jury instruction based on the Hawaii

Standard Jury Instructions Criminal (“HAWJIC”) 9.21 jury

instruction on Assault in the Third Degree.          The requested

instruction stated the following:

                 In the Complaint, the Defendant, Jonathan Henley, is
           charged with the offense of Assault in the Third Degree.
                 A person commits the offense of Assault in the Third
           Degree if he intentionally, knowingly, or recklessly causes
           bodily injury to another person.
                 There are two material elements of the offense of
           Assault in the Third Degree, each of which the prosecution
           must prove beyond a reasonable doubt.
                 These two elements are:
                 1. That, on or about November 10, 2012 in the City
           and County of Honolulu, State of Hawaii, the Defendant
           caused bodily injury to another person; and
                 2. That the Defendant did so intentionally,
           knowingly, or recklessly.

The requested instruction was eventually withdrawn in favor of

the submission of an almost identically worded “Court’s General

Instruction No. 23,” by agreement of the parties.           The Court’s

General Instruction No. 23 simply identified the person bodily

injured as “Gary K. Massey.”       No instruction on mutual affray

was given to the jury; that standard jury instruction (HAWJIC

9.21A) states the following:

           If you find that the prosecution has proven the offense of
           Assault in the Third Degree beyond a reasonable doubt, then
           you must also determine whether the prosecution has proven
           beyond a reasonable doubt that the fight or scuffle was not
           entered into by mutual consent. This determination must be
           unanimous and is to be indicated by answering “Yes” or “No”
           on a special interrogatory which will be provided to you.

No special interrogatory on mutual affray (HAWJIC 9.21C) was

given to the jury, either.


                                     9
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER     ***


           4.    Verdict and Sentencing

      The jury found Henley guilty as charged.         Henley’s

sentencing hearing was held the day after trial concluded.              The

State sought a sentence of 30 days’ imprisonment, one year

probation, and anger management treatment.         Defense counsel

sought a sentence of probation because Henley had no prior

criminal record.      He counter-argued that there was “no rational

basis in the evidence that [Henley] has any anger management

problems.”      The circuit court then questioned defense counsel as

to why probation would be necessary, if a probation officer

would have “nothing to supervise,” given that there did not seem

to be a need to impose any special conditions involving drug,

alcohol, or mental health treatment; or anger management.

Defense counsel responded that a probation officer would still

monitor whether Henley had further contacts with law enforcement

or was working or in school.

      At that point, defense counsel remarked that he noticed

that the court had “three individuals from Public Safety in the

courtroom[.]”      That observation prompted defense counsel to

point out that, under HRS § 804-4(a), “the right to bail shall

continue after conviction of a misdemeanor”; defense counsel

argued that Henley’s $200.00 bail must continue.           Defense

counsel stated that he intended to appeal Henley’s conviction.



                                    10
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


      The State then asserted that Henley’s bail should be

increased to $11,000.00 pending appeal.         The State reasoned,

“[Henley] is not from here.      Appeals take a long time. . . I

don’t know what his living situation is now, however, there’s

obviously the possibility over on the course of a lengthy appeal

that a defendant may not --”       Although the State did not finish

its sentence, the circuit court interrupted, “It’s happened

quite often.”    The State responded, “Exactly.”        The State and

the circuit court seemed to imply that Henley would likely leave

Hawaii during the course of his appeal.        Defense counsel

corrected the implication, stating

           [T]hat’s not true. . . [Henley] and his father moved here
           from Arkansas. . . [H]is father started his construction
           business over here so that – that’s where they live now,
           this is where they remain. And this is where he will be
           over the next several years . . . . [R]ight now the only
           indication is his father says they intend to stay here.

The State insisted that Henley’s $200.00 bail be increased

pending appeal.    The circuit court disagreed with the State’s

assertion that “bail can be increased,” stating, “No, but the

bail can be adjusted to the risk.        He’s now a convicted

misdemeanant and the risk of flight is very high in these

cases.”   Defense counsel again argued that HRS § 804-4 supported

his contention that the circuit court could not increase

Henley’s bail; the circuit court responded, “Okay.           I know

you’re wrong on that one, but okay.”        Accordingly, defense

counsel argued that if the circuit court was going to increase

                                    11
***     FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER    ***


bail, he asked it to limit the increase to $2,000.00, the

maximum fine for a misdemeanor, “because [Henley’s] father can

post the bond today.”      The court remarked that Henley’s father’s

ability to pay the bond was “useful information.”

      At this point, Henley was allowed his right to allocution.

Henley stated that he was focused on school and work and

“get[ting] his life together[.]”          He stated that was trying to

avoid jail time, which would cause him to lose his job, which

would further hamper his ability to save for school.

      After defense counsel concluded his sentencing arguments,

the circuit court sentenced Henley to 30 days’ imprisonment,

with credit for any time served.          Although the circuit court

stayed mittimus pending Henley’s appeal, it also increased

Henley’s bail from $200.00 to $2,000.00 cash only, with no

further hearing on bail.       Therefore, Henley was taken into

custody and not released until his father paid the $2,000.00

cash only bail three days later.3

      B.   ICA Appeal

      On appeal, Henley raised the following points of error:

            (1) There was insufficient evidence to convict [Henley] of
            Assault in the Third Degree.
            . . . .
            (2) The trial court abused its discretion in raising
            [Henley’]s bail pending appeal in a misdemeanor case.
            . . . .

3
      We note that the procedure in this case was unusual, as sentencing
should precede any discussion of bail pending appeal. Procedurally, trial
courts should address sentencing before addressing any issues regarding bail
on appeal.

                                     12
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER      ***


            (3) The trial court abused its discretion in sentencing
            [Henley] to 30 days jail as a first time offender.

In a summary disposition order (“SDO”), the ICA affirmed the

circuit court’s judgment of conviction and sentence.            State v.

Henley, CAAP-13-0005595 (App. Jan. 29, 2015) (SDO) at 1.              As to

the first point of error, the ICA held that sufficient evidence

supported Henley’s conviction, based on the jury’s apparent

determination that Massey’s testimony (that Henley head-butted

him without provocation) was more credible than Copp’s and

Henley’s.    Henley, SDO at 3.

      The ICA concluded that the second point of error was

“without merit.”     Id.   The ICA stated that Henley “plainly

misreads HRS § 804-4” in arguing that the trial court is

prohibited from changing the amount of bail after a defendant is

convicted of a misdemeanor.       Id.     The ICA reasoned

            A defendant who is pending trial and is clothed with the
            presumption of innocence is in a different position than a
            defendant who has been adjudged guilty of a crime. A
            defendant who is pending sentencing is also in a different
            position than a defendant who has been sentenced to a term
            of incarceration. In addition, evidence adduced during the
            trial or sentencing may affect the trial court’s evaluation
            of the appropriate bail amount and conditions for a
            defendant. We conclude that the Circuit Court did not
            abuse its discretion in raising Henley’s bail from $200 to
            $2000 (cash only) pending his appeal.

Henley, SDO at 4.     To support its conclusion, the ICA also cited

to HRS § 804-9 (2014) for the following language:            “The amount

of bail rests in the discretion of the justice or judge. . . .”;

and HRS § 804-6 (2014) for the following language (with emphasis

added):   “Unless otherwise ordered by the court the bail bond

                                     13
***     FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER      ***


given by any defendant prior to the defendant’s conviction,

shall, in cases where bail after conviction is permitted either

absolutely or by order of the court, be continued as the bail of

the defendant after conviction, and until the final

determination of any subsequent proceedings in the cause.”                Id.

       As to the third point of error, the ICA noted that the

circuit court is vested “with wide discretion” in imposing

sentence, and that 30 days’ incarceration was not an abuse of

discretion, given the evidence adduced at trial that “Henley

assaulted Massey, a sixty-eight-year-old man, by head-butting

Massey above the right eye and . . . thr[owing] punches at

Massey.”     Id.

III.    Standards of Review

       A.   Unrequested Jury Instructions

             As a general rule, jury instructions to which no objection
             has been made at trial will be reviewed only for plain
             error. An error will be deemed plain error if the
             substantial rights of the defendant have been affected
             adversely. Additionally, this 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. Kikuta, 125 Hawaii 78, 95, 253 P.3d 639, 656 (2011)

(citing State v. Nichols, 111 Hawaii 327, 334, 141 P.3d 974, 981

(2006)) (quotations marks and brackets omitted).




                                      14
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER        ***


      B.   Plain Error

      “Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of

the court.”       Hawaii Rules of Penal Procedure (“HRPP”) Rule 52(b)

(1977).

      C.   Bail

      “It is settled that the determination of the amount of bail

rests peculiarly within the discretion of the trial court.              An

appellate court should not disturb or interfere with the

exercise of such discretion, unless it is clearly abused.”

Sakamoto v. Won Bae Chang, 56 Haw. 447, 451, 539 P.2d 1197, 1200

(1975) (citation omitted).

      D.   Sentencing

      This court has stated:
            [a] sentencing judge generally has broad discretion
            in imposing a sentence. The applicable standard of
            review for sentencing or resentencing matters is
            whether the court committed plain and manifest abuse
            of discretion in its decision. Factors which
            indicate a plain and manifest abuse of discretion are
            arbitrary or capricious action by the judge and a
            rigid refusal to consider the defendant’s
            contentions. And, generally, to constitute an abuse
            it must appear that the court clearly exceeded the
            bounds of reason or disregarded rules or principles
            of law or practice to the substantial detriment to
            the litigant.

State v. Kong, 131 Hawaii 94, 101, 315 P.3d 720, 727 (2013)

(quoting State v. Rivera, 106 Hawaii 146, 154-55, 102 P.3d 1044,

1052-53 (2004)).

                                     15
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER    ***


IV.   Discussion

      On certiorari, Henley raises the following questions

presented:   whether “(1) there was insufficient evidence to

support his conviction; (2) the Circuit Court abused its

discretion in raising his bail pending appeal; and (3) the

Circuit Court abused its discretion in sentencing him to jail

for a first offense.”     As a preliminary matter, we agree with

the ICA that the standard for appellate review compels the

conclusion that sufficient evidence supported Henley’s

conviction as the jury apparently credited Massey’s testimony,

and credibility determinations are for the trier of fact.

Henley, SDO at 3.    We accepted certiorari in this case, however,

because the circuit court plainly erred in failing to instruct

the jury on mutual affray, and we cannot say that this error is

harmless.    Therefore, we vacate the ICA’s Judgment on Appeal,

which affirmed the circuit court’s judgment of conviction and

sentence, and remand this case for further proceedings.

Although a retrial obviates the need for this court to address

the second and third issues, we address the second issue to

provide the circuit court with guidance on remand.           We do not

address the third issue.




                                    16
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


      A.   The Circuit Court Plainly Erred in Failing to Instruct
           the Jury on Mutual Affray

      Although neither the State nor Henley has raised the issue,

we note that the circuit court in this case was required to

instruct the jury on mutual affray.        “[I]n our judicial system,

the trial courts, not parties, have the duty and ultimate

responsibility to insure [sic] that juries are properly

instructed on issues of criminal liability.”          State v. Adviento,

132 Hawaii 123, 137, 319 P.3d 1131, 1145 (2014)(citations

omitted); see also Nichols, 111 Hawaii at 339, 141 P.3d at 986

(“[I]t is the duty of the trial court to see that the jury is

properly instructed.”).     HRPP Rule 30, titled “Instructions to

the Jury,” also reflects that ultimate responsibility for

instructing the jury lies with the trial court.          See, e.g.,

subsection (c), which authorizes the trial court to refuse,

approve, or modify requested instructions; and subsection (d),

which authorizes the trial court to revise and/or combine

instructions that were approved and/or not objected to, and

which authorizes the trial court to prepare its own instructions

if no written requests for instructions are made.

      Henley was charged with Assault in the Third Degree under

HRS § 707-712(1)(a), which states, “A person commits the offense

of assault in the third degree if the person . . .

[i]ntentionally, knowingly, or recklessly causes bodily injury


                                    17
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


to another person[.]”      HRS § 707-712(2) goes on to state,

“Assault in the third degree is a misdemeanor unless committed

in a fight or scuffle entered into by mutual consent, in which

case it is a petty misdemeanor.”         “Mutual affray” is a

“mitigating defense” to Assault in the Third Degree, reducing

the offense from a misdemeanor to a petty misdemeanor.            Kikuta,

125 Hawaii at 95-96, 253 P.3d at 656-57.

      The circuit court, by agreement of the parties, gave the

jury the standard HAWJIC 9.21 jury instruction, which covers the

elements of Assault in the Third Degree enumerated in HRS

§ 707-712(1)(a).    The circuit court did not give the jury the

standard HAWJIC 9.21A jury instruction on mutual affray, which

tracks the language of HRS § 707-712(2), or the standard HAWJIC

9.21C special interrogatory regarding mutual affray.            We held in

Kikuta that a trial court “must submit a mutual affray

instruction to the jury where there is any evidence in the

record that the injury was inflicted during the course of a

fight or scuffle entered into by mutual consent. . . .”            Kikuta,

125 Hawaii at 96, 253 P.3d at 657 (emphasis added).           The notes

to HAWJIC 9.21A contain the same recommendation:           “When an

Assault in the Third Degree instruction [HAWJIC 9.21] is

submitted to the jury, the court must also submit a mutual

affray instruction [HAWJIC 9.21A] and special interrogatory

[HAWJIC 9.21C] where there is any evidence that the fight or

                                    18
***     FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


scuffle was entered into by mutual consent.”           We have previously

found this recommendation to be “prudent,” notwithstanding the

introduction to the HAWJIC, which states, “Nothing herein

contained shall be construed as an approval by the Supreme Court

of the State of Hawaii . . . of the substance of any of said

instructions.”     Kikuta, 125 Hawaii at 96 n.12, 253 P.3d at 657

n.12.

       “[M]utual affray requires both parties to have approved of,

or agreed to, a fight or scuffle, whether expressly or by

conduct.”    Id.   In this case, there was evidence that Massey was

injured “during the course of a fight or scuffle entered into by

mutual consent. . . .”      Kikuta, 125 Hawaii at 96, 253 P.3d at

657.    First, the testimony may have suggested that Massey’s

decision to follow Copp and Henley caused an already tense

situation to deteriorate.       Massey admitted on cross-examination

that Henley and Copp were voluntarily leaving the premises when

Massey decided to follow them, and that Massey could have

remained behind them at a distance.         There was evidence that

Copp, Henley, and Massey had already engaged in a few rounds of

insults and name-calling.       Officer Muna testified that Massey

told him the verbal argument escalated as they all headed down

the stairs.




                                     19
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


      Second, Copp and Henley testified that Massey initiated

aggressive physical contact and attempted several fighting

maneuvers upon Henley.     Both testified that Massey grabbed

Henley’s arm and jerked him forward as Henley was exiting the

stairwell.   It was at this point that Henley shoved Massey away.

Undeterred, Massey stated, “[Y]ou’re going to get it now,”

according to Copp’s testimony.       Then, Massey tried to “tackle”

Henley and put him in an “arm bar or choke.”

      Third, there was evidence to suggest that Massey persisted

in his attempts to hurt Henley, even after Henley disengaged

from the fight.    According to both Copp and Henley, when Massey

was unable to tackle Henley or get him into an armbar or

chokehold, Massey grabbed Henley’s testicles.          Even after Henley

sprang off of Massey, Copp testified that Massey “was still

clinging onto Henley’s shirt as Henley attempted to leave,”

which caused Copp to “karate chop” Massey’s hand.

      This testimony provided the evidence in the record that

Massey’s “injury was inflicted during the course of a fight or

scuffle entered into by mutual consent. . . .”          Kikuta, 125

Hawaii at 96, 253 P.3d at 657 (emphasis added).           Consequently,

the circuit court should have given the jury an instruction and

special interrogatory on mutual affray; the circuit court

plainly erred in failing to do so.



                                    20
***      FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


      Further, we cannot say that the omission of the mutual

affray instruction was harmless beyond a reasonable doubt, as it

is possible, on this record, that given a choice between

convicting Henley on misdemeanor Third Degree Assault and the

mitigated offense of petty misdemeanor assault, the jury could

have convicted Henley on the latter.          See Kikuta, 125 Hawaii at

97, 253 P.3d at 658 (“Inasmuch as it is the duty of the trial

court to properly instruct the jury, the judgment of conviction

must be vacated, without regard to whether timely objection was

made, because there is a reasonable possibility that the error

contributed to [the] conviction for misdemeanor assault in the

third degree.”) (citation and quotation marks omitted).

Accordingly, the ICA’s judgment on appeal, which affirmed

Henley’s conviction, is vacated, and this case is remanded to

the circuit court for a new trial.

      B.    The Circuit Court Abused its Discretion in Increasing
            Henley’s Bail from $200.00 to $2,000.00 Cash Only.
      On certiorari, Henley argues that that the circuit court

abused its discretion in increasing his bail pending appeal.              We

agree.

      Article I, section 12 of the Constitution of the State of

Hawaii provides, “Excessive bail shall not be required. . . .

The court may dispense with bail if reasonably satisfied that

the defendant . . . will appear when directed, except for a


                                      21
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


defendant charged with an offense punishable by life

imprisonment.”   Under HRS § 804-9, “[t]he amount of bail . . .

should be so determined as to not suffer the wealthy to escape

by the payment of a pecuniary penalty, nor to render the

privilege useless to the poor.”       Further, under that statute,

“the officer letting to bail should consider the punishment to

be inflicted on conviction, and the pecuniary circumstances of

the party accused.”     In setting bail, we have held that the

determination of bail under HRS § 804-9 must be made “on an

individualized basis. . . .”      Pelekai, 75 Hawaii at 366, 861

P.2d at 1210.    In Sakamoto, 56 Haw. at 451, 539 P.2d at 1200,

this court noted that bail is to be fixed in a reasonable

amount, considering the financial status of the defendant and

the punishment to be imposed upon him on conviction.

      The circuit court abused its discretion in this case by not

tailoring the bail to Henley’s individual circumstances.

The police initially set Henley’s $200.00 bail pursuant to the

chief of police’s authority under HRS § 804-5 (2014) (“[W]here

the punishment for the offense charged may not exceed two years’

imprisonment with or without a fine, . . . the chief of police

or any person name by the chief of police . . . may admit the

accused person to bail.”).      Apparently, $200.00 bail was seen as

an appropriate amount of bail under the circumstances, as



                                    22
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


neither the district nor circuit court judges that handled

Henley’s case changed the amount.

      As this court recently noted in State v. Kiese, 126 Hawaii

494, 510, 273 P.3d 1180, 1196 (2012), HRS § 804-4 provides that

“[t]he right to bail shall continue after conviction of a

misdemeanor,” and our case law holds “an accused misdemeanant

. . . is entitled to bail as a matter of right after conviction

and pending appellate review.”       (Citing State v. Ortiz, 74 Haw.

343, 356, 845 P.2d 547, 553 (1993)).         Although Henley’s right to

bail continued post-conviction, the circuit court had the

authority to change the amount of bail post-conviction pursuant

to its discretionary authority under HRS ' 804-9.           In exercising

its discretion, it was required by HRS § 804-9, governing the

amount of bail, to “consider the punishment to be inflicted on

conviction, and the pecuniary circumstances of the party

accused.”

      First, regarding the “punishment to be inflicted,” bail was

initially set at $200.00 when Henley was facing the possibility

of one year in jail.     The circuit court ultimately sentenced

Henley to 30 days’ imprisonment.         Despite that, the circuit

court multiplied the amount of bail tenfold.          Moreover, that the

increased bail amount was to be paid in cash only was equivalent

to increasing bail up to $20,000.00, because a bond normally may

be obtained for five to fifteen percent of the bail amount in

                                    23
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


Hawaii.   National Conference of State Legislatures, Bail Bond

Agent Business Practices, available at

http://www.ncsl.org/research/civil-and-criminal-justice/bail-

bond-agent-business-practices.aspx (last visited Dec. 15, 2015).

Because the issue was not raised, we do not address whether

“cash only” bail is permissible under the law, but this case

highlights the unfairness in conditioning bail on payment in

cash only.

      Second, regarding Henley’s “pecuniary circumstances,”

Henley was 19 years old.      Although he was apparently working in

telecommunications, he was determined to be indigent and was

represented by court-appointed counsel throughout his trial.

The circuit court did not find any specific facts about Henley’s

individual circumstances that would have justified an increase

in bail.   The State and the circuit court seemed to assume that

a bail increase was necessary because Henley was a flight risk.

This assumption was based merely on the fact, however, that

Henley and his father had apparently recently moved to Hawaii.

In other words, the increase of bail was premised upon recency

of arrival and not risk of flight.        Defense counsel interjected

that Henley and his father had moved to Hawaii from Arkansas,

that his father started a construction business in Hawaii, and

that the family intended to stay.        Nevertheless, the circuit


                                    24
***    FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER     ***


court persisted in raising Henley’s bail simply because Henley

was a recent arrival.     This approach overtly discriminates

against recent arrivals, with no indication as to the length of

time one must live in this state such that bail will not be

elevated on that basis.

      The increase in bail was also directly contradicted by the

court’s comments.    The circuit court refused to place defendant

on probation, despite defense counsel’s request.           The circuit

court did not believe anger management, drug and/or alcohol

treatment, or mental health treatment was appropriate.            That

Henley had no other apparent problems reaffirms that the

increase in bail was simply based on the fact of conviction and

not determined on an individualized basis.

      Rather, the circuit court apparently increased Henley’s

bail amount based on Henley’s father’s ability to pay.            Defense

counsel argued at sentencing that Henley’s increased bail should

be limited to $2,000.00, the maximum fine for a misdemeanor,

“because [Henley’s] father can post the bond today.”            Defense

counsel represented that Henley’s father could post the bond

(i.e., $100.00 to 350.00, or five to fifteen percent of the

proposed bail amount).     The circuit court remarked that that was

“useful information.”     In setting bail at $2,000.00 cash only,

the circuit court actually set bail even beyond what Henley’s

father stated he could pay that day.        Indeed, Henley’s father

                                    25
***     FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER    ***


was not able to pay the $2,000.00 cash only bail until three

days later.

      There is also evidence on the record that the circuit court

used the maximum amount of the fine ($2,000.00) to determine the

amount of bail, as that is what defense counsel requested as a

last resort.    Lacking any other justification based on Henley’s

individual circumstances, this method of increasing bail to

match the maximum fine is improper.         Instead, at its core, the

bail increase was based simply on the fact that defendant had

been convicted, sentenced to jail, and had allegedly “recently”

arrived in Hawaii, despite his family having settled here.              This

is clearly contrary to the intent of our bail statutes with

respect to misdemeanants.       In short, the circuit court clearly

abused its discretion in increasing Henley’s bail from $200.00

to $2,000.00 cash only.

V.    Conclusion

      The circuit court plainly erred in failing to instruct the

jury on mutual affray.      Based on this error, Henley’s judgment

of conviction for Assault in the Third Degree must be vacated.

For future guidance, however, we also note that the circuit

court abused its discretion in increasing Henley’s $200.00 bail

to $2,000.00 cash only bail pending appeal.           Therefore, the

ICA’s Judgment on Appeal, is vacated, as is the circuit court’s

judgment of conviction and sentence.         This case is remanded to

                                     26
***   FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


the circuit court for further proceedings consistent with this

opinion.

Shawn A. Luiz                    /s/ Sabrina S. McKenna
for petitioner
                                 /s/ Richard W. Pollack
Loren J. Thomas
for respondent                   /s/ Michael D. Wilson




                                   27
