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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000007
                                                              28-FEB-2014
                                                              07:45 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

         PAUL C.K. KAEO, Petitioner/Defendant-Appellant.


                             SCWC-12-0000007

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-12-0000007; CR. NO. 09-1-0719)

                            FEBRUARY 28, 2014

           NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.,
                WITH RECKTENWALD, C.J., DISSENTING

                 OPINION OF THE COURT BY POLLACK, J.

           This case raises the question of whether the trial

court erred in failing to instruct the jury upon the offense of

assault in the first degree as an included offense of the charge

of murder in the second degree.

           The circuit court in this case declined to instruct the
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jury on the defense’s requested instruction on assault in the

first degree.     The jury returned a verdict of manslaughter, and

the Intermediate Court of Appeals (ICA) affirmed the circuit

court’s judgment.

            We conclude that assault in the first degree is an

included offense of murder in the second degree, and the circuit

erred by not instructing the jury upon the included offense of

assault in the first degree.        Accordingly, we vacate the ICA’s

and circuit court’s judgments, and remand for a new trial.

                                     I.

                                     A.

                                     1.

             Paul Kaeo (Paul) was charged with murder in the second

degree pursuant to Hawai#i Revised Statutes (HRS) § 707-701.5

(1993).    The following facts were adduced at trial.1

            Paul met his future wife Debbie Baker Kaeo (Debbie) in

1989.    They were married on June 6, 1998.        Around the end of

2008, Debbie and Paul moved into the home of Debbie’s mother,

Lucille Baker (Lucille), where they lived together with Lucille

and Debbie’s brother, Calvin Baker (Calvin), until February 2009.

In February 2009, Paul learned that Debbie was seeing Charles

Kahumoku (Charles) and Debbie moved out.          Debbie testified that



     1
            The Honorable Karen S. S. Ahn, presiding.

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she moved in with Charles.      At that time, Debbie was working for

Roberts Hawai#i as a bus driver.

           Despite their separation, Debbie and Paul continued to

communicate from February to May 2009, usually after Debbie and

Charles got into arguments.       On direct examination, Debbie

testified that Paul would get upset during these conversations

and threaten to kill Charles.       On cross-examination, however,

Debbie stated only that she “assum[ed]” Paul had once threatened

to kill Charles during these conversations and that she could not

remember mentioning Paul’s threats against Charles to anyone.

Debbie also testified that she could not remember Paul ever

asking where Charles lived.

           Calvin also stated that Paul had said he would kill

Charles “if he found him.”      On cross-examination Calvin stated

that he never told his sister about Paul’s threats.            Calvin also

confirmed that it was possible Paul actually said “he don’t know

what might happen” if Paul ever saw Charles, and not that he

would kill Charles.

           Paul denied ever telling Calvin that he would kill

Charles.   Paul admitted saying to Calvin that Paul “never like

see [Charles] because I don’t know what might happen.”            Paul

testified that he still loved Debbie and would take her back if

she wanted him back.     Paul acknowledged that he did not like

Charles after he found out Charles was sleeping with Debbie.

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           Paul testified that Debbie complained to him about

Charles’ drinking, mood swings, and his overprotectiveness of

her.   Debbie and Paul testified that sometime around the end of

March or beginning of April 2009, Debbie called Paul “for advice”

because Charlie had threatened to shoot her.          Paul testified that

it sounded as if “[Debbie] was in the room, and [Charles] was

locked out, and I could hear him, like, pounding on the door and

saying that he going kill her if she leave him.”           Paul stated

that Debbie asked him at that time to pick her up, but he was at

the beach with Calvin, had no car, and Calvin would not lend him

his car.

           Paul testified that after Debbie called him, he left a

message on Charles’ phone asking “why [Charles] hitting on

[Debbie][?]”   Charles called Paul back, and Paul told him “he

gotta stop, stop hitting her or for sure she’s gonna leave him.”

Paul told Charles he could hear him threaten to kill Debbie.                At

that point, according to Paul, Charles started yelling and

swearing at him and Charles said “you know what, I see you on the

street, I’ll shoot you too.”       Paul testified that he then hung up

the phone because he was scared.

           Paul testified that another incident of Charles abusing

Debbie occurred a few weeks later in the middle of April.             Debbie

admitted that this incident occurred at a bar near the airport

where Debbie and Charles were having drinks with friends.             Debbie

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testified that she did not understand why Charles became angry

during this incident.     However, Paul testified that Debbie said

to him that “she started talking to this guy at the bar and

[Charles] got jealous.”      Debbie testified that after Charles got

upset she went to the women’s bathroom.         Charles followed her

into the bathroom and then hit her in the back.           Another person

in the bathroom came out of a stall and told Charles to stop and

get out.   Debbie testified that she got scared and called Paul.

           Paul testified that he was at work on a night shift

that lasted from 10 p.m. to 6 a.m. when Debbie called and told

him what had occurred.      Paul told her to come over to his

workplace.   Debbie testified that she ran over to Paul’s

workplace, which was near the bar, because she did not want to

get hit again and was afraid she would.

           Paul testified that when Debbie arrived, he had to open

a gate at his workplace to let her in.         At that point, Debbie and

Paul saw Charles driving by Paul’s workplace in a truck.             Paul

testified that Debbie stayed at his workplace for a couple hours

while he worked and then she left.        Paul testified that when

Debbie left, she went back to the bar to meet Charles.

           Paul testified further that he saw Debbie again the

next day at Lucille’s house.       According to Paul, Debbie said “she

hate when Charlie do this kind of stuff when – because he always

do ‘em when he drunk.”      Paul testified that Debbie then pulled

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down the collar of her turtleneck and showed him “a bruise like

someone choked her.”     The bruise was not present when Paul saw

her the night before.     Paul told Debbie “you gotta do something

about it because my hands are tied if you no like be with me[.]”

Debbie denied that she went to her mother’s house at this time or

that these events occurred.

            Despite these incidents, Debbie testified that while

her relationship with Charles was not perfect, she was happy with

him.   She also stated that it was not “a hard choice choosing

between Paul and Charles[.]”       Debbie testified also that Paul

never attempted to reconcile his relationship with her or tried

to persuade her to get back into a relationship with him.

                                     2.

            Paul, Calvin, and Debbie all testified that on May 8,

2009, Paul and Calvin were at Lucille’s house preparing for a

family party or baby shower that was scheduled to take place the

next day.    Lucille was in California at this time.         Paul

testified that at approximately 9 a.m., Debbie called him and

offered to come to the house and help with the cooking.             Paul

testified that he told Debbie to stay at home.

            Debbie testified that on that day Charles picked her up

after work and dropped her off at Lucille’s around 4:30 p.m.

Calvin testified that Paul was in the house and did not speak to

Charles at this time.     Paul testified that because he was almost

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done with the cooking he, Debbie, and Calvin just “[hung] out”

outside the house in the garage/driveway.          Calvin testified they

drank beer.   Debbie confirmed that they spent the evening

drinking beer and “talking stories” outside of the house in the

garage/driveway.

           Paul and Calvin testified that during the evening

Debbie’s relationship with Charles was discussed.           Paul testified

that Debbie said she was scared of Charles and “don’t like when

he’s always mad at her.”      Paul and Calvin testified that they

attempted to convince Debbie to stay over at the house for the

night.   Debbie said she would not mind, but she did not have a

work uniform for the next day.       Paul informed her she had an

extra work uniform inside.

           Debbie testified that Paul and Calvin brought up the

issue of her relationship with Charles.         Debbie testified that

Paul and Calvin tried to convince her to stay over but that she

“just wanted to go home.”      Debbie testified that Paul said she

looked “scared” and that Paul knew “he threatening you,” to which

Debbie replied, “what you talking about?         I no understand.”

           At this point, Paul and Calvin testified that they

thought Debbie was going to stay over.         Paul wanted Debbie to

stay over because he “cannot see her getting beat – beaten every

time.”   Calvin also testified that he spoke on the phone with

Charles and told him that Debbie was going to stay over.             Calvin

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testified that Debbie did not want to go home or go with Charles.

           Debbie and Paul testified that at some point in the

evening, Debbie left the house to get pupus but forgot her

cellular phone at the house.       Paul testified that while Debbie

was gone, Charles called her phone.        Paul answered the phone and

said “lose the number” and then hung up.         Charles called back a

few minutes later and Paul answered again.          This time Paul

explained that Debbie was going to stay over for the night and

Calvin would drive her to work and pick her up.           Paul testified

that at this point Charles “started swearing and stuff like that

and he told me that don’t interfere with my life, I going kill

you.”   That made Paul scared for himself and Debbie.           Paul

testified that he was scared for Debbie because “if she do go

home, who knows what he might do.        I don’t know what he’s capable

of.”

           Debbie testified that when she returned she noticed

that she had a missed call.       Paul told Debbie that Charles had

called.   Debbie did not think it was a “big deal.”          Debbie then

went into the house.     Debbie called Charles and asked him to pick

her up.   Debbie wanted to go home at about 9:30 p.m. because she

had work the next day.

           Paul testified that at about 9:00 p.m. or 9:30 p.m.

Charles arrived at Lucille’s house in his truck.           Paul testified

that he did not know Charles was coming.         Calvin also testified

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that he did not know Charles was coming and was surprised when he

showed up.

             Paul testified that Debbie stood up to leave and he

pushed her back down.      Debbie testified that she stood up, hugged

both Calvin and Paul goodbye, “was ready to walk out the gate,”

and then was “flown back” onto the grass behind the garage by

Paul.     Calvin testified that Debbie never stood up.          Paul

testified that he said to Debbie “you’re not going home with this

guy tonight.”     According to Debbie, Paul said “‘You ain’t’ – ‘you

ain’t fucking leaving.’”

             Paul testified that the reason he pushed Debbie down

was because something might happen to her.           Paul testified

further that, as a result of the conversation he had with Charles

about Debbie staying over and Charles threatening to kill Paul,

Charles might be mad and drunk enough to kill Debbie and thus he

“feared for her life.”

             Paul testified that he next walked into the street

toward Charles’ truck.       Paul told Charles “[Debbie] going stay

over I told you, you know, just go home and pick her up at work.”

Paul testified that Charles started “yelling and stuff like

that,” but Paul could not hear him because Charles was in the

truck. Paul grabbed a “pipe,”2 which Calvin described as the

      2
            Debbie at first described it as a “pipe or something.” Debbie
identified State’s Exhibit 1 as the object in Paul’s hand that evening.
                                                                (continued...)

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rebar they used to keep the gate closed so as to keep the dogs in

the yard and “started smashing on [Charles’] car.”            Paul smashed

the windshield first, then the passenger side window.             Debbie

testified that she attempted to grab the bar out of Paul’s hand

but Paul shoved her down again.        Paul testified that he pushed

Debbie down and told her to stay away.          He also testified that he

was not jealous and the attack was “like trying to keep her safe,

protect – protecting her.”       Paul testified that he “never like .

. . something happen to her” “[b]ecause [Charles] was hurting

Debbie.”

            Calvin testified that he could not understand anything

Paul was saying.     Debbie testified that while Paul was smashing

Charles’ car, Paul said “he going kill him” “many times.”              Debbie

noticed that Charles looked scared and was not attempting to get

out of the car.     After hitting Charles’ car a number of times,

Paul testified that he “went onto the driver’s side and started

jabbing [Charles].”      Debbie testified that as Paul walked around

the truck to the driver’s side, Paul said “I going kill him.”

Debbie testified that during this time she was “screaming and

yelling” “stop, just stop.”        Debbie testified that she called the



      2
       (...continued)
Debbie described it as a peg made out of metal used for holding up tents while
camping. An evidence specialist (Specialist) with the Honolulu Police
Department’s Scientific Investigation Section recovered a two-foot metal bar
that was depicted in State’s Exhibits 19 and 29. Calvin identified the bar in
State’s Exhibit 19 as the one from Paul’s hand.

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police three times while she was trying to stop Paul from hurting

Charles.

            On cross-examination, Debbie acknowledged that she did

not mention Paul saying he would kill Charles while Paul was

hitting Charles’ car in her written statement or in her half-hour

interview with the detectives, and she did not remember telling

this to the grand jury.       Debbie testified that she told the

prosecuting attorney in the case about what Paul said on at least

one occasion.3

            Paul testified that he jabbed Charles through the open

driver side window.      Paul stated that he never opened the door

while he was jabbing Charles with the bar.           Calvin testified that

he saw Paul “poking” Charles with the bar while Charles was

inside the truck.4     Paul testified that at this point he was only

trying to hurt Charles and not kill him:

            [DEFENSE COUNSEL]: Okay. When you were jabbing into there,
            what were you trying to do, Paul?
            [PAUL]: I was trying to hurt him.
            [DEFENSE COUNSEL]: Okay. But, I mean, why?
            [PAUL]: Because he was hurting Debbie.
            [DEFENSE COUNSEL]: Okay. You said earlier you pushed down
            Debbie because you were afraid for her?
            [PAUL]: Yes, I was afraid for her.


      3
            After Debbie’s testimony concluded, Defense Counsel stated on the
record, out of the presence of the jury, that at no time did the prosecutor’s
office disclose that Debbie had said that Paul said “I going kill him,”
referring to Charles. The Prosecutor related that he could not remember and
did not know of these statements by Paul prior to that day in court.

      4
            Debbie testified that she again tried to get the bar out of Paul’s
hand again and Paul pushed her down a third time. Paul testified that Debbie
was not around. Debbie testified that she did not know where Calvin was at
this point.

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            [DEFENSE COUNSEL]: Okay. When you're jabbing the bar into
            the truck, you still afraid for her?
            [PAUL]: Yes.
            [DEFENSE COUNSEL]: Okay. Were you trying to kill him?
            [PAUL]: No.
            [DEFENSE COUNSEL]: You weren't trying to kill him?
            [PAUL]: No.
            [Defense Counsel]: Okay. What were you trying to do, Paul, I
            mean, what --
            [PAUL]: I was just trying to stop him from, you know, taking
            her and, who knows, beating her, stuff like that.
            [DEFENSE COUNSEL]: Did you, I guess, at any time think about
            the kind of injuries that you wanted to inflict?
            [PAUL]: At that time I wasn't thinking. My mind was just --
            [DEFENSE COUNSEL]: Okay. But you know you weren't trying to
            kill him?
            [PAUL]: Yes.
            [DEFENSE COUNSEL]: You were trying to hurt him though?
            [PAUL]: Yes.
            [DEFENSE COUNSEL]: Okay. But you don't remember how much?
            [PAUL]: No.


            Paul admitted he knew hitting someone in the head with

the bar he hit Charles with could be dangerous, but he denied

aiming for Charles’ head, stating that he “just swung wild” and

“was just jabbing wild[.]”       Paul also admitted hitting Charles

“out of anger[.]”

            Paul testified that he stopped hitting Charles when he

saw Charles “go down.”       Paul could not hear Charles breathing or

any “gurgling sounds.”       Paul also testified that he “couldn’t see

blood.”   Paul and Calvin testified that at this point Calvin came

up behind Paul and “told ‘em enough already.”5           Both testified


      5
            A neighbor (Neighbor), who was twenty yards away across the
street, testified that he went outside when he heard commotion in the street.
He saw Charles’ truck drive up, saw the door open, and saw someone go into
Charles’ truck from the driver’s side and that “most of their body was into
the truck maybe with their leg still out hanging on the street.” Neighbor
testified that it seemed like a fight was happening in the truck and there was
a pounding sound. Neighbor also heard what sounded like a woman trying to
                                                                (continued...)

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that Calvin took the bar from Paul.         Calvin testified that he

threw the bar over the car.

           Paul testified that he said to Calvin that he should

take Charles to the hospital because he knew he “beat him real

bad.”   Paul said “I need to do something to help this guy, what I

did.”   Paul then tried to push Charlie over so he could “get in

and go.”   Paul testified that at this point Debbie came up and

took the keys out of the ignition of the truck.           Paul admitted

that he never actually told Debbie he was planning to take

Charles to the hospital.

           Debbie testified that when Paul opened the driver’s

side door, Charles was slouched over the steering wheel.             She

testified further that Paul then said “Fuck you.           Get away.    I

going take him.     I going take him.”      Debbie testified that Paul

was trying to start the truck.       Debbie took the keys out of the

truck to prevent Paul from taking Charlie because Debbie was

worried about Charlie.      Paul and Debbie testified that Paul ran

away after Debbie took the keys.          Debbie testified that Charles

had a pulse and was breathing at this time.          According to Debbie




       5
        (...continued)
break up the fight. Neighbor testified that he went back inside five minutes
later, “maybe ten at the most.” Neighbor stated that he heard no breaking
glass and did not see anyone strike the truck. Neighbor said it was very dark
and they went back inside because they did not want to intrude on a family
issue.

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no emergency personnel showed up for ten more minutes.             Paul

denied knowing Charles was dead on the night of the incident.6

            Jeffery Jacobson (Jacobson), who responded to the

incident, testified that he arrived on the scene in an ambulance

at about 9:50 p.m.      Jacobson testified that the passenger window

“looked shattered” and the windshield of Charles’ truck was

damaged.    He then noticed that Charles’ “feet were above the

steering wheel . . . and he was lying at an angle down where his

head was in the passenger seat[.]”           Jacobson checked Charles’

pulse but “no pulse was indicated.”           Charles also was

unresponsive and not breathing.        He attempted to revive Charles

with CPR and adrenalin, but Charles did not return to spontaneous

respirations or spontaneous pulse.           Jacobson took Charles to

Waianae Coast Comprehensive Health Center, the nearest

appropriate facility.      Dr. Gayle Suzuki (Dr. Suzuki),7 a medical

examiner, testified that Charles was pronounced dead on May 8,

2009.

            Dr. Suzuki testified that on May 10, 2009, she

conducted an autopsy of Charles.           She identified numerous

external wounds to Charles’ head, such as bruises and scrapes on

the middle part of his forehead, a scrape over his right eyebrow


      6
            Paul acknowledged that he was the person who killed Charles.

      7
            Dr. Suzuki was offered as an expert “in the field of anatomical,
clinical and forensic pathology, qualified to give opinions on things like
manner of death, mechanism of injury, etcetera.”

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and a bruise by his right eye.       Charles also had a broken nose

and circular cuts on his nose and below his left jaw.            Dr. Suzuki

testified that the external head wounds alone were not fatal.

           On his torso, Charles had a “semicircular scrape” to

the left side of his chest, scrapes and bruises on his back

shoulder blades, along the back of his forearm and a “seven inch

. . . bruise on the left side of his torso[.]”           Charles had no

external injuries from the waist down.         Dr. Suzuki testified that

Charles’ wounds were consistent with Charles being attacked from

the left side.    She described many of the arm wounds as defensive

type injuries.

           Dr. Suzuki also determined that there were internal

injuries to Charles’ head.      She described these injuries as

“rotational type injuries” resulting in a “shearing and

stretching of the brain cells itself.”         Dr. Suzuki testified that

these rotational type injuries could result in a range of

injuries, from concussions to death.         In this case, the shearing

resulted in bleeding around blood vessels on the brain, which

indicated an injury to the brain.         Dr. Suzuki testified that

these injuries were caused by blunt force trauma, which was the

cause of Charles’ death.      She testified that there was no skull

fracture, but external injuries would not necessarily occur even

where a person died from blunt force trauma to the head.



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            Dr. Suzuki testified that Charles had a blood alcohol

concentration (BAC) of .221.       She stated that Charles’ head

injury alone was sufficient to cause his death and that even

without the alcohol in his system, Charles would have died.

[Id.]

            On cross-examination, Dr. Suzuki discussed alcohol

concussion syndrome (ACS).      She described ACS as a “mechanism”

that caused persons with BACs from .22 to .33 to suddenly stop

breathing and die after suffering an otherwise non-fatal blow to

the head.    She stated, however, that the prior cases of ACS,

unlike the instant case, did not involve physical damage to the

brain itself.    Dr. Suzuki testified that she could not rule out

alcohol as a factor contributing to Charles’ death, but she still

believed “to a reasonable medical degree” of certainty that even

without the alcohol, Charles would have died.          However, she

conceded that she was not “a hundred percent absolute[ly]”

certain that a person with Charles’ injuries and no alcohol in

their system would also have died.




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                                     B.

           Prior to trial, Paul submitted Defendant’s Requested

Jury Instructions numbers 5 and 6 on assault in the first degree8

and assault in the second degree.9

           Before testimony began, the parties and the court

discussed jury instructions.       The court “reserved” the issue of



     8
           Defendant’s Jury Instruction No. 5 reads as follows:

                 If and only if you find Paul Kaeo not guilty of
           Manslaughter, or you are unable to reach a unanimous verdict
           as to this offense, then you must consider whether the
           defendant is guilty or not guilty of the included offense of
           Assault in the First Degree.
                 A person commits the offense of Assault in the First
           Degree if he intentionally or knowingly causes serious
           bodily injury to another person.
                 There are two material elements to the offense of
           Assault in the First Degree, each of which the prosecution
           must prove beyond a reasonable doubt.
                 These two elements are:
                 1.    That, on or about May 8, 2009, in the City and
           county of Honolulu, State of Hawai#i, the Defendant caused
           serious bodily injury to another person; and
                 2.    That the Defendant did so intentionally or
           knowingly.

     9
           Defendant’s Jury Instruction No. 6 read as follows:

                 If and only if you find Paul Kaeo not guilty of
           Assault in the First Degree, or you are unable to reach a
           unanimous verdict as to this offense, then you must consider
           whether the defendant is guilty or not guilty of the
           included offense of Assault in the Second Degree.
                 A person commits the offense of Assault in the Second
           Degree if he intentionally or knowingly causes substantial
           bodily injury to another person.
                 There are two material elements to the offense of
           Assault in the Second Degree, each of which the prosecution
           must prove beyond a reasonable doubt.
                 These two elements are:
                 1.    That, on or about May 8, 2009, in the City and
           county of Honolulu, State of Hawai#i, the Defendant caused
           substantial bodily injury to another person; and
                 2.    That the Defendant did so intentionally or
           knowingly.



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whether to give Defendant’s Requested Jury Instructions numbers 5

and 6.    Later that day the court informed the parties that the

court would not be submitting to the jury the assault in the

first degree instructions, which the court initially had included

in its own instructions.      The defense objected, noting that Paul

had requested both assault in the first degree and assault in the

second degree.    The defense argued that under HRS § 701-109(4)(a)

or (c), but especially (c), the court should give instructions

for both assault in the first degree and assault in the second

degree.    The defense contended that this case “exactly” fits the

description of an “included” offense in HRS § 701-109(4)(c),

which the defense described as one that “differs from the offense

charged only in the respect that a less serious injury or

different state of mind suffices to establish its commission.”

            The prosecution argued that assault in the first degree

not be given.    The prosecution contended that assault in the

first degree would “have to go through a manslaughter verdict or

analysis,” which requires a reckless state of mind and assault in

the first degree has an intentional or knowing state of mind.

            The court based its decision not to give the assault

instruction on State v. Robinson, 82 Hawai#i 304, 922 P.2d 358

(1996) and State v. Alston, 75 Haw. 517, 865 P.2d 157, (1994).

The court characterized the holding in Robinson as “you don’t get

an assault third lesser off an assault one unless there is a

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rational basis to find that the injury did not constitute serious

bodily injury but actually in fact constituted bodily injury.”

The court read Alston to hold that HRS § 701-109(4)(c) “generally

require[s] the same end result.”          The court concluded that when

Alston and Robinson are “combined” they “seem to suggest” that

“when it comes to murder and a dead person . . . you cannot get

to a different injury, which is pure injury, serious bodily

injury, substantial bodily injury.”         The court accordingly based

its decision not to include the proposed assault instructions

solely on its interpretation of the law and not based on the

facts presented at trial.

           Thus, the court gave instructions to the jury on murder

in the second degree, reckless manslaughter, and extreme mental

or emotional disturbance manslaughter.         During closing arguments

the defense argued that if the jury believed Paul only assaulted

Charles and did not intend to kill him, the jury should find Paul

not guilty because they had not been instructed on assault.               The

Court interrupted the defense to say that assault was not a

consideration:

           [DEFENSE COUNSEL]: Now, if you say, no, it wasn't a jealous
           rage, you gotta -- the other path you gotta look at, and
           this is actually probably where you're supposed to start,
           okay, is same thing. Okay? Was it murder? If it wasn't
           murder, was it manslaughter? Okay.
                 Now, generally speaking, you guys know where this line
           goes, right? There's -- I mean, you know, there's assaults
           but you have no instructions for assaults so you cannot
           consider any kind of assault. Okay? So even if you say to
           yourselves, and this is just an assault, I mean, I don't
           think he intended to kill him or anything like that, I don't


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            think he acted recklessly, that's an assault. But you don't
            have an instruction, okay? So that would mean you're here,
            okay? You're not guilty. Now if anywhere along this line
            you stop, you say, okay –
            THE COURT: Assault is not to be – assault is not a
            consideration.
            [DEFENSE COUNSEL]: That's right. That's what I said. Okay.
            So if you stop anywhere along this line, you say murder or
            manslaughter, then you gotta consider the defenses that were
            raised. Okay?


(Emphasis added).

            On August 8, 2011, the jury convicted Paul of reckless

manslaughter.     On December 5, 2011, the court sentenced Paul to

twenty years imprisonment with a mandatory minimum of six years

and eight months.     Paul appealed to the ICA.

                                      C.

            Paul raised a single relevant10 point of error on

appeal to the ICA: the lower court erred in refusing to submit

defendant’s requested jury instructions regarding the included

offense of assault in the first degree.

            Paul argued that the jury should have been instructed

on assault in the first degree pursuant to HRS § 701-109(4)(c)



      10
            As part of his first point of error raised to the ICA, Paul also
contended that the lower court erred in refusing to submit defendant’s
requested jury instructions on assault in the second degree. In light of our
determination that the jury should have been given an instruction on assault
in the first degree as a lesser included of murder in the second degree, it is
unnecessary to discuss this argument.
            Paul raised two additional points of error to the ICA. First,
“The lower court abused its discretion by refusing to allow evidence of the
familial relationship between the decedent and the State’s primary witness.”
This point is not raised in the Application. Second, the circuit court
violated his “constitutional right to present a complete defense by precluding
[his] attorney from arguing this was an assault case.” In light of our
disposition of Paul’s primary argument in the Application, it is unnecessary
to discuss this issue.

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because “assault ‘differs from [murder] only in the respect that

a less serious injury or risk of injury to the same person . . .

suffices to establish its commission.’”         (Emphasis added).      Paul

contended that the commentaries to the Model Penal Code (MPC)

supported this argument as the MPC commentaries specifically

state that “Paragraph (c) allows conviction of an offense

consisting of an intentional infliction of bodily harm where the

charge is intentional homicide[.]”        Thus, “[t]he fact that the

defendant’s conduct caused an injury which resulted in death does

not preclude Assault as an included offense.”

           Paul further argued that the court erred in its

interpretation of Alston’s “end result” analysis because “death

is a form of injury,” and thus assault and Murder could have the

same “end result.”     Paul reasoned that “the issue of the included

offenses turns on whether the evidence supports a rational

conclusion that the defendant did not intentionally or knowingly

cause a death, but instead, acted with the state of mind to

commit assault.”    Paul maintained that “[u]nder the principles of

criminal law, an individual cannot be adjudged guilty without

proof that he acted with the requisite criminal mens rea to cause

the prohibited harm or injury,” and “[t]he penal law does not, in

most instances, condemn a person’s conduct alone.”           Paul stated

that there was “a rational basis for concluding that he did not

contemplate killing [Charles], and thus he is entitled to the

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requested instructions on Assault.”        Paul maintained that HRS §

701-109(4) does not indicate in any way that the “end result, in

this case death, controls the included instructions that are

given.”

           Paul distinguished Robinson, which involved a dispute

over whether the defendant caused the injuries and not a dispute

as to the defendant’s state of mind.        In this case, by contrast,

the central question is whether the evidence supports a finding

that Paul only intended to assault Charles and not kill him.

           The prosecution responded that the trial court need not

instruct the jury on a lesser included offense “unless there is a

rational basis in the evidence for a verdict acquitting the

defendant of the offense charged and convicting him of the

included offense.”     The prosecution argued that Paul admitted

trying to hurt Charles because Charles was hurting Debbie and

Paul admitted causing the injuries to Charles and to killing

Charles.   Paul admitted that “At that time I wasn’t thinking.              My

mind was just --.”     Paul knew “hitting somebody in the head with

the bar can be dangerous and deadly.”         Finally, Paul admitted

that “he ‘just swung wild,’” at any part of Charles’ body and

“beat [Charles] real bad” because Paul was angry.           The

prosecution concluded that based on this evidence “there was no

rational basis to support the contention that the jury could have



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rationally acquitted Defendant of Reckless Manslaughter and

convicted him of [Assault in the First Degree].”

            The ICA issued a Summary Disposition Order (SDO)

affirming the circuit court judgment (judgment) relying on the

holding in State v. Haanio, 94 Hawai#i 405, 16 P.3d 246 (2001),

that “when the jury convicts the defendant of the charged offense

or a greater included offense, a trial court’s failure to

instruct on a lesser included offense is a harmless error.”11

                                     II.

            In his Application for Writ of Certiorari, Paul raises

a single12 point of error:

            The ICA gravely erred in holding that the circuit court’s
            failure to instruct the jury on the lesser-included assault
            offenses was a harmless error.

                                      A.

            The ICA affirmed the circuit court judgment solely on

the grounds that, pursuant to Haanio, the court’s failure to

instruct on assault in the first degree was harmless because the

jury convicted Paul of manslaughter.         After the ICA issued its



      11
            The ICA also found that the court’s interruption of the defense’s
closing arguments concerning assault did not disturb or dispute Paul’s theory
that the jury “must acquit if they believe [Paul] did not act with the
requisite intent for murder or manslaughter, and did not violate [Paul’s]
right to present a complete defense.

      12
            Paul also raises as a sub-point that his federal and Hawai#i
constitutional rights to present a defense and to effective assistance of
counsel were violated by the court’s foreclosing his counsel from arguing to
the jury the lesser included offenses of assault in the first degree and
assault in the second degree.

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SDO, this court held that “Haanio is overruled to the extent that

it holds the trial court’s error in failing to give included

offense instructions is harmless if the defendant was convicted

of the charged offense or of a greater included offense.”             State

v. Flores, 131 Hawai#i 43, __, 314 P.3d 120, 134 (2013).

           In Flores, the issue was whether the trial court should

have instructed the jury on unlawful imprisonment in the first

degree when the defendant was charged with and convicted of the

crime of kidnapping.     Flores, 131 Hawai#i at __, 314 P.3d at 121,

128.   After establishing that unlawful imprisonment in the first

degree was a lesser included offense of kidnapping and that the

evidence in the case presented a rational basis for the jury to

acquit Flores on kidnapping and convict him of unlawful

imprisonment in the first degree, the Flores court held that the

trial court’s failure to instruct on unlawful imprisonment was

not harmless simply because the defendant was convicted of the

greater offense.    Flores, 131 Hawai#i at __, 314 P.3d at 121-135.

Instead, the court held that there was a rational basis for the

jury to find Flores guilty of unlawful imprisonment in the first

degree, had the jury been given the appropriate instruction.                Id.

at, 314 P.3d at 135.     Thus, “[t]he failure to instruct the jury

on a lesser included offense for which the evidence provides a

rational basis warrants vacation of the defendant’s conviction.”


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Id.

              In this case, Paul was charged with murder in the

second degree and convicted of the lesser included offense of

reckless manslaughter.         Pursuant to Flores, if assault in the

first degree is a lesser included offense of murder in the second

degree, and there was a rational basis in the evidence for

acquitting Paul of murder in the second degree and convicting him

of the included offense of assault in the first degree, then the

court’s failure to instruct on the included offense is subject to

a harmless beyond a reasonable doubt standard.

                                        B.

              “[A]n offense is a lesser included offense of another

if it satisfies the requirements set forth in HRS § 701-109(4)

which codifies the common law doctrine of lesser included

offenses.”      State v. Alston, 75 Haw. 517, 532-33, 865 P.2d 157,

166 (1994) (quotations, citations, and brackets omitted).                HRS §

701-109(4) provides in relevant part:

              A defendant may be convicted of an offense included in an
              offense charged in the indictment or the information. An
              offense is so included when:
              . . . .
              (c)It differs from the offense charged only in the respect
              that a less serious injury or risk of injury to the same
              person, property, or public interest or a different state of
              mind indicating lesser degree of culpability suffices to
              establish its commission.


HRS § 701-109(4) (1993).         Each subsection of the statute

“requires alternative analyses.”             Alston, 75 Haw. at 533, 865 P.d



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at 166 (citing State v. Burdett, 70 Haw. 85, 87, 762 P.2d 164,

166 (1988)).   In particular, subsection (c)         “expands the

doctrine of lesser included offenses to include crimes that

require a . . . less serious injury or risk of injury.”            Burdett,

70 Haw. at 90, 762 P.2d at 167.

           “The degree of culpability, degree of injury or risk of

injury and the end result are some of the factors considered in

determining whether an offense is included in another under HRS §

701-109(4)(c).”    State v. Kupau (Kupau I), 63 Haw. 1, 7, 620 P.2d

250, 254 (1980).    In this case, the degree of culpability, the

end result, the degree of injury or risk of injury and the

legislative history all strongly indicate that assault in the

first degree is a lesser included offense of murder in the second

degree.

                                     1.

           First, “[r]egarding the degree of culpability, the rule

is that the lesser included offense cannot have a mental state

greater than or different from that which is required for the

charged offense.”    Alston, 75 Haw. at 534, 865 P.2d at 166.           For

example, in Kupau I, the court held that “harassment has a

greater mental state than assault in the third degree” because

“[h]arassment requires a state of mind that has the intent to

harass, annoy or alarm, while assault requires a mental state

that is intentional, knowing or reckless.”          63 Haw. at 6, 620

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P.2d at 254.   Likewise, harassment “has a more culpable mental

state than terroristic threatening in the first degree” because

the latter “requires a mental state that is intentional or

reckless.”   Burdett, 70 Hawai#i at 88, 762 P.2d at 166-167.

            In both Kupau I and Burdett, the court noted that the

Commentary on HRS § 702-208 states that intent, knowledge,

recklessness, and negligence are in descending order of

culpability.   Kupau I, 63 Haw. at 6 n.5, 620 P.2d at 253 n.5;

Burdett, 70 Hawai#i at 88-89, 752 P.2d at 167.          Thus, the degree

of culpability test refers to the state of mind—intentionally,

knowingly, recklessly, or negligently—required to establish an

element of an offense pursuant to HRS § 702-204.

            In this case, murder in the second degree and assault

in the first degree both require an intentional or knowing state

of mind.

            In Alston, the court held that terroristic threatening

is not a lesser included offense of intimidating a witness, in

part because the court determined that the “two offenses have

‘different’ mens rea requirements.”        75 Hawai#i at 534, 865 P.2d

at 166.    The court first noted that terroristic threatening can

be committed with the lesser mental state of recklessness, while

intimidating a witness requires an intentional mental state.                Id.

Thus, terroristic threatening does not have a mental state


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greater than that required for intimidating a witness.            However,

the court held that the two offenses have “different” mental

state requirements because “intimidating a witness requires the

intent to cause another’s absence from an official proceeding,

and terroristic threatening requires the intent to cause, or

recklessness in causing, terror.”         Id.

            Murder in the second degree and assault in the first

degree do not require “different” mental states under the Alston

analysis.    To prove the offense of murder in the second degree,

the State must establish that “the person intentionally or

knowingly cause[d] the death of another person.”           HRS § 707-

701.5(a).    To prove the offense of assault in the first degree,

the State must show that the “person intentionally or knowingly

cause[d] serious bodily injury to another person.”           HRS § 707-

710(1).

            Therefore, assault in the first degree does not have a

mental state greater than or different from that which is

required for murder in the second degree.

                                     2.

            Second, subsection (c) “provides that a crime can be a

lesser included offense when a less serious injury or risk of

injury to the same person is involved.”         Burdett, 70 Haw. at 91,

762 P.2d at 168.    See Kupau I, 63 Haw. at 8, 620 P.2d at 254

(injury resulting from harassment is different from, and

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therefore not less serious than injury received from assault in

the third degree, because “[a]lthough harassment requires a

physical touching, [the statute] is concerned with the offensive

nature of the touching to one’s sensibilities”).

            Both murder in the second degree and assault in the

first degree require that the person intentionally or knowingly

cause physical harm to another.        They differ in that assault in

the first degree requires a “less serious injury or risk of

injury to the same person,” consistent with HRS § 701-109(4)(c).

If a person “causes the death of another” under HRS § 707-

701.5(a), then the person will necessarily have caused a “bodily

injury which creates a substantial risk of death” under HRS §§

707-710(1) and 707-700 (emphasis added).          See Young v. State, 605

S.W.2d 550, 552 (Tex. Crim. App. 1979) (“one cannot intentionally

or knowingly cause the death of another without committing an act

clearly dangerous to human life”).13

            “HRS [§] 701-109(4) has been taken almost verbatim from

the Proposed Official Draft of the Model Penal Code, [§] 1.07(4)

(1962).”    Kupau I, 63 Haw. at 4, 620 P.2d at 252.          The commentary



      13
             The Hawai#i Penal Code is patterned after the Model Penal Code.
See State v. Gaylord, 78 Hawai#i 127, 140 n.22, 890 P.2d 1167, 1180 n.22
(1995).
             The Model Penal Code was also “highly influential” in the
development of the Texas Penal Code. See Thompson v. State, 236 S.W.3d 787,
797 (Tex. Crim. App. 2007) and Brown v. State, 955 S.W.2d 276, 284 (Tex. Crim.
App. 1997) (“Because the Legislature expressed an intent to model our Code
after the Model Penal Code, we may also look to the Model Code for
guidance.”).

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to the Model Penal Code (MPC) § 1.07(4) expressly provides that

“Paragraph (c) allows conviction of an offense consisting of an

intentional infliction of bodily harm where the charge is

intentional homicide[.]”      MPC § 1.07 cmt. 5 (Revised Comments

1985) (emphasis added).

           The MPC defines criminal homicide as “purposely,

knowingly, recklessly or negligently caus[ing] the death of

another human being.”     MPC § 210.1(1).      Criminal homicide

constitutes murder when “it is committed purposely or knowingly.”

MPC § 210.2(1).    Under the MPC, purposely is equivalent to

“intentionally” or “with intent.”         MPC § 1.13(12).    See MPC §

2.02(2)(a) (defining general requirements of culpability).

           Accordingly, the MPC formulation of murder is identical

to the definition of murder in the second degree under HRS § 707-

701.5 (intentionally or knowingly causing the death of another

person).   The MPC also defines “aggravated assault” as

“purposely, knowingly or recklessly” causing “serious bodily

injury,” MPC § 211.1(2)(a) (Revised Commentaries 1980), similar

to HRS § 707-710    (intentionally or knowingly causing serious

bodily injury).

           Thus, consistent with the MPC, HRS § 701-109(4) allows

for a conviction of assault in the first degree where the charge

is murder in the second degree.       See State v. Box, 626 N.E.2d

996, 1000 (Ohio Ct. App. 1993) (holding that “felonious assault,”

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defined as “knowingly . . . caus[ing] serious physical harm to

another,” is a lesser included offense of aggravated murder,

defined as “purposely, and with prior calculation and design,

caus[ing] the death of another”).14        See also Hall v. State, 295

S.E.2d 194, 195 (Ga. App. 1982) (holding that aggravated assault

with intent to commit murder may be charged as a lesser included

offense of murder).15

            Furthermore, finding that assault in the first degree

is a less serious degree of injury or risk of injury than murder

in the second degree is consistent with the concept that a

defendant may act intentionally or knowingly with respect to the

conduct, but not as to the result of the conduct.            For example,

in State v. Kupau (Kupau II), 76 Hawai#i 387, 391, 879 P.2d 492,

496 (1994), overruled on other grounds by State v. Haanio, 94

Hawai#i 405, 16 P.3d 246 (2001), in the context of an assault

case, the court explained that the defendant could have acted

intentionally or knowingly with respect to his conduct, and the

victim could have in fact suffered substantial bodily injury as a

result thereof.     However, if the defendant did not act

intentionally or knowingly with respect to that result of


      14
            “Ohio's statutory definitions of criminal offenses in the Revised
Code are based largely upon the American Law Institute's Model Penal Code.”
State v. Brooks, 542 N.E.2d 636, 641 (Ohio 1989).

      15
            “[T]he present Criminal Code was based in large measure on the
Model Penal Code.” Grace v. State, 200 S.E.2d 248, 255 (Ga. 1973).

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substantial bodily injury, but only acted recklessly with respect

to the result, then the defendant “may, depending upon the

circumstances,” only be guilty of the lesser included offense of

assault in the third degree (requiring intentional, knowing or

reckless state of mind) rather than the charged offense of

assault in the second degree (requiring intentional or knowing

state of mind).16    Id. at 391-92, 879 P.2d at 496-97.

           By the same reasoning, if there is a rational basis in

the evidence to prove that the defendant acted intentionally or

knowingly with respect to the conduct of causing serious bodily

injury, but the defendant did not act intentionally or knowingly

with respect to the result of death, then an assault in the first

degree instruction should be given.

           The circuit court in this case did not give the lesser

included instruction on assault because murder results in death

while assault does not result in death.         However, as stated, in

both situations, serious bodily injury was caused to another

person; but in a murder prosecution, the serious bodily injury

     16
            The Kupau II court interpreted HRS § 707-711(1) (Supp. 1992),
which provided that a person commits the offense of assault in the second
degree if the person “intentionally or knowingly causes substantial bodily
injury to another.” Kupau II, 76 Hawai#i at 388, 388 n.1, 879 P.2d at 493,
493 n.1. HRS § 707-712 (1985) provided that a person commits the offense of
assault in the third degree if the person “intentionally, knowingly, or
recklessly causes bodily injury to another person.” Kupau II, 76 Hawai#i at
388 n.3, 879 P.2d at 493 n.3.
            The current statute provides, as it did on May 8, 2009, that
assault in the second degree is committed if the person intentionally or
knowingly causes substantial bodily injury to another, or if the person
recklessly causes serious or substantial bodily injury to another. HRS § 707-
711(1) (1993).

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has resulted in death.      It would be illogical for a court’s

submission of a jury instruction on assault in the first degree

to depend upon the fortuity of the victim living or dying as a

result of the same injuries.       That is, in two situations the

defendant could have the identical intent with respect to the

conduct of causing serious bodily injury.          However, if in one

situation the victim receives medical assistance and lives, the

jury is instructed on the lesser offense of assault in the first

degree.   In the identical situation, where the victim does not

receive medical care and dies, the jury is not so instructed.

Under the same reasoning, the timing of the trial could determine

whether the instruction on assault is given, depending on whether

the victim eventually succumbs to the injuries.

           Accordingly, the offense of assault in the first degree

differs from the offense of murder in the second degree only in

the respect that a less serious injury (i.e. substantial risk of

death versus death) suffices to establish its commission.

                                     3.

          Third, we consider the end result to determine whether

an offense is included in another.        “The Commentary to HRS § 701-

109 and this court in Kupau [I] indicated that the lesser

included offense should produce the same end result as the

charged offense.”    Burdett, 70 Haw. at 89, 762 P.2d at 167.           The

“end result” refers to the result of the criminal act.            For

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example, negligent homicide has the same end result as murder

under HRS § 701-109(c).       Commentary to HRS § 701-109.

           However, this court has never stated that the “end

result” factor is dispositive.        The end result is only one of the

factors that can be considered in determining whether one offense

is included in another.       See State v. Woicek, 63 Haw. 548, 551,

632 P.2d 654, 656 (1981) (“some of the factors that can be

considered in determining whether an offense is included in

another are the degree of culpability, the end result and

legislative scheme”) (emphasis added).

            In Kupau I, the court found that harassment and assault

in the third degree do not produce the same end result, as the

end result of assault is bodily injury, and harassment has no

such result.    63 Haw. at 7, 620 P.2d at 254.         The court further

noted that the evidence in that case showed that the victim

“suffered mental anxiety as a result of the incident, but not

bodily injury as would result from assault.”           Id.

            In this case, the circuit court relied on Alston as a

basis for its determination that “the end result” of assault and

murder are different because murder involves a “dead person”

whereas assault involves “pure injury.”17     In Alston, the court found


      17
            The circuit court “combine[d]” Alston and Robinson to reach this
conclusion. Robinson, however, was decided on the grounds that the defendant
“points to evidence that the victim suffered bodily injury as well as serious
bodily injury” but offered no theory under which the victim suffered only
                                                                (continued...)

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that the terroristic threatening offense and intimidating a

witness offense have “distinct” end results.          75 Haw. at 535, 865

P.2d at 167.    The court explained that “[t]heoretically,

terroristic threatening produces a psychological injury to the

person threatened,” whereas       “intimidating a witness results in

the absence of the person threatened from an official proceeding

to which he or she was legally summoned.”          Id. (emphases added).

“Stated differently in the context of the legislative

classification, terroristic threatening produces a personal

injury while intimidating a witness impairs the administration of

a public function.”     Id. (emphasis added).

           Thus, the focus in Alston was on the nature of the

harm; i.e. psychological injury versus physical absence of the

person from judicial proceedings.         The court referred to the

different legislative classification of the offenses as a way of

emphasizing the distinct nature of the harm for each offense.

This is similar to the court’s approach in Burdett, in which the

court explained that the end results of harassment and

terroristic threatening are similar but distinct, because

“terroristic threatening involves threats and psychological


      17
        (...continued)
bodily injury and no serious bodily injury. 82 Hawai#i at 314, 922 P.2d at
368. In other words, the defendant in Robinson presented no evidence that she
could be acquitted of assault in the first degree and convicted of assault in
the third degree. Id. In this case, as discussed infra, there was sufficient
evidence for the jury to conclude that Paul intentionally or knowingly
committed assault but did not intend to cause Charles’ death.

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rather than actual physical harm, while the harassment statute

seeks to preserve public peace and prohibits insults or

challenges likely to provoke a violent or disorderly response.”

70 Haw. at 89, 762 P.2d at 167.

           Whereas Kupau, Burdett, and Alston involved offenses in

which the end results were distinct due to the different

legislative purposes for the offenses, assault and murder are

both classified as offenses against the person, and both result

in actual physical harm to a person.        Cf. State v. Kinnane, 79

Hawai#i 46, 56, 897 P.2d 973, 983 (1995) (finding the end results

of attempted sexual assault in the second degree and sexual

assault in the fourth degree are the same because “[i]n both

instances the victim is placed in jeopardy of being injured or is

being injured by the defendant’s conduct,” even though sexual

assault in the fourth degree “envisions a less serious injury or

risk of injury [(sexual contact)] than attempted sexual assault

in the second degree [(risk of sexual penetration)]”).            The “end

result” factor therefore weighs in favor of finding that assault

in the first degree is a lesser included offense of murder in the

second degree.

                                     4.

           Finally, the court may consider the legislative

statutory scheme for both offenses in determining whether one is

a lesser included offense of the other.         This court has

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considered whether the offenses are placed in separate categories

under the Hawai#i Penal Code.      See Kupau I, 63 Haw. at 7, 620

P.2d at 254 (“the structure of the Hawai#i Penal Code places the

offenses of harassment and assault in the third degree in

separate categories,” with the former placed in the chapter of

“Offenses Against Public Order” and the latter placed in the

chapter of “Offenses Against Persons”); Alston, 75 Haw. at 534,

865 P.2d at 166 (“terroristic threatening is classified as an

offense against the person in HRS chapter 707, while intimidating

a witness is classified as an offense against public

administration in HRS chapter 710”).        Separate classification of

offenses under the Penal Code “indicates that different societal

interests were intended to be protected[.]”          Kupau, 63 Haw. at 7,

620 P.2d at 254.

           In this case, assault in the first degree and murder in

the second degree are both classified as offenses against persons

under HRS Chapter 707.

                                     5.

           The analysis under HRS § 701-109(4)(c) demonstrates

that assault in the first degree differs from murder in the

second degree only in that assault in the first degree involves a

less serious injury or risk of injury.         Assault in the first

degree does not have a mental state different from that required


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for murder in the second degree; both require an intentional or

knowing mental state.     Both offenses have the same end result,

given that both result in physical harm to the person.            Assault

in the first degree results in a lesser degree of harm than

murder in the second degree.       Finally, both offenses are part of

the same legislative statutory scheme under “Offenses Against the

Person.”   Thus, assault in the first degree is a lesser included

offense of murder in the second degree under HRS § 701-109(4)(c).

                                     C.

           The question then becomes whether there was a rational

basis in the evidence to acquit Paul of murder in the second

degree and convict him of assault in the first degree.            Flores,

131 Hawai#i at __, 314 P.3d at 130.

           “Jury instructions on lesser-included offenses must be

given where there is a rational basis in the evidence for a

verdict acquitting the defendant of the offense charged and

convicting the defendant of the included offense.”           Id. at __,

314 P.3d at 128.    “[J]urors are at liberty to believe all, none,

or part of the evidence as they see fit.”          Haanio, 94 Hawai#i at

415, 16 P.3d at 256.

           In this case, there was a rational basis for acquitting

Paul of the murder charge and convicting him of assault in the




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first degree.18    First, Paul testified that while he was trying

to hurt Charles, he did not intend to kill him.            Had the jury

believed Paul’s testimony, the jury would have had a rational

basis for finding that Paul did not intentionally or knowingly

cause Charles’ death.      Paul testified that he was trying to

“hurt” Charles.     Paul stated he did not know “how much” he was

trying to hurt Charles.       Paul also said that “At that time I

wasn’t thinking.     My mind was just --.”

            Additionally, the circumstances of the incident could

have led the jury to believe that Paul did not intentionally or

knowingly cause Charles’ death.        The offense was committed with a

metal bar that kept the gate closed to keep the dogs in the yard,

which provides some evidentiary support that Paul did not plan to




      18
            The dissent contends that “neither party here advocated for the
approach taken by the majority.” Dissenting Opinion at 3-4. This is
incorrect.
            At trial, during the settlement of the jury instructions, defense
counsel argued to the court that “an offense is so included when it differs
from the offense charged only in the respect that a less serious injury or
different state of mind suffices to establish its commission. That’s exactly
what we have here.”
            In his first point of the Statement of the Points Relied Upon,
Paul argued that, “The requested Assault instructions should have been
submitted to the jury pursuant to HRS § 701-109(4)(a) as assault ‘is
established by proof of the same or less than all the facts required to
establish’ murder.”
            In the argument section of his Opening Brief, Paul stated the
following: “Paul’s requests from the lower court for first-and second-degree
Assault as lesser-included offenses of Murder in the Second Degree is
precisely because the Assaults involve ‘less serious injuries to the same
person,’ and because they also involve a ‘different state of mind indicating a
lesser degree of culpability.’”

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intentionally or knowingly cause Charles’ death.19           Paul’s

initial focus was breaking the car windshield and windows and not

on attacking Charles’ person.

            It also appears that Paul never opened the car door to

attack Charles.     Consistent with the attack being carried out

through the window, Calvin testified that Paul was “poking” at

Charles.    Paul also testified that he “jabbed” or “was jabbing”

at Charles.

            While Paul acknowledged that he knew hitting someone in

the head with the bar could cause death, he testified that at the

time he was attacking Charles he did not aim for any particular

part of Charles’ body.       Some of Charles’ wounds were consistent

with being attacked from outside the driver-side door and were

described by Dr. Suzuki as “defensive type injuries.”             She also

testified that there were no skull fractures.

            The incident occurred at 9:00 or 9:30 at night.            Paul

described the scene as “dark.”        Similarly, a neighbor testified

that “the street was dim.       Where everything took place was very

dark as well.”     Paul also testified that he “couldn’t see blood.”

Under the circumstances, Paul may not have been aware where his

jabs were landing.




      19
            While plan is not an element of the offense of murder in the
second degree, the lack of a plan may make it more likely that Paul did not
intend to cause Charles’ death.

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           Paul also testified that he intended to take Charles to

the hospital when Debbie took the keys from the truck.            Intending

to take a person to the hospital would also provide evidentiary

support that Paul did not intentionally or knowingly cause

Charles’ death.    Furthermore, when Paul was in the truck and the

keys were taken by Debbie, Paul was no longer in possession of

the bar, as it had been taken from him by Calvin.           Debbie also

testified that when the incident ended Charles had a pulse and

was breathing.

           Furthermore, the testimony was conflicting as to

whether Paul said he would kill Charles.         Calvin testified that

Paul said prior to the day of the incident that he would “kill”

Charles if he ever saw him.       However, Calvin acknowledged that

Paul could have said “he don’t know what might happen” if he saw

Charles.   Paul denied telling Calvin that Paul wanted to kill

Charles.   Debbie testified that, on the night of the incident,

Paul said “many times” that “he going kill him” referring to

Charles.   However, Debbie admitted that she did not tell the

police this information or include it in her written statement.

           The jury would also have had a rational basis for

believing that Paul was trying to protect Debbie by warning or

punishing Charles.     Paul testified multiple times that he

believed that Charles was physically abusing Debbie.            He

testified that he was not jealous and the attack was “like trying

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to keep her safe, protect -- protecting her.”          Paul testified

that he “never like . . . something happen to her” “[b]ecause

[Charles] was hurting Debbie.”

           The jury’s verdict in this case also indicates that the

jury believed Paul did not intentionally or knowingly cause

Charles’ death.    The jury convicted Paul of the included offense

of reckless manslaughter, which rejects the conclusion that Paul

intentionally or knowingly caused Charles’ death.           See HRS § 707-

702(1)(a) (Supp. 2006).

           The court made its decision not to instruct the jury on

assault based on its analysis of the law as interpreted though

Robinson and Alston, not upon facts adduced at trial.            The

prosecution also argued against the inclusion of the assault

charges based on an interpretation of law and not on the factual

circumstances of the case.

           The totality of the evidence showed a rational basis

for acquitting Paul of murder in the second degree and convicting

him of assault in the first degree.        Because assault in the first

degree is a lesser included offense of murder in the second

degree, Paul was entitled to a jury instruction on assault in the

first degree.    The court’s failure to give this instruction was




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not harmless beyond a reasonable doubt.          Flores, 131 Hawai#i at __

, 314 P.3d at 134.20

            Thus, the ICA erred in affirming the court’s judgment

because the court erred in failing to instruct the jury on the

included offense of assault in the first degree.

                                      D.

            The dissent contends that under the facts of this case

that the jury “could not have” found that Paul committed assault

in the first degree “without also finding that [Paul] consciously

disregarded a substantial and unjustifiable risk that his conduct

would cause [Charles’] death.”        Dissenting Opinion at 6.        In

other words, the dissent is contending that the same evidence

that would have permitted the jury to convict [Paul] of first

degree assault would have also required the jury to convict him

of reckless manslaughter.       Id. at 6, 9.

            This contention is incorrect both as a matter of law

and of fact.    First, as a matter of law, a jury’s determination

of intentionally or knowingly causing serious bodily injury does

not provide any inference that the jury would have concluded that

the defendant consciously disregarded a risk that the defendant’s


      20
            As noted by Paul in his Application, the court interrupted Defense
Counsel “during closing arguments when counsel was arguing to the jury that if
they believed the instant matter was an assault case, then they should find
Paul not guilty.” The court interrupted to say that “Assault is not to be –
assault is not a consideration.” Denying defense counsel the ability to make
this very argument highlights the harmful error caused by a failure to
properly instruct the jury.

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conduct would result in the injured person’s death, much less

that the manslaughter offense was required to have been proved

for the jury to return an assault in the first degree verdict.

           Second, as a matter of the facts adduced at trial, the

contention that a finding of assault in the first degree in this

case would require a jury to convict Paul of manslaughter is not

correct.

           Paul testified that at the time he was assaulting

Charles he did not aim for Charles’ head or for any particular

part of Charles’ body.      In view of Paul’s testimony, it was for

the jury to judge the credibility of his statements and to assess

Paul’s actions before, during, and after the incident in light of

all the other evidence to determine Paul’s state of mind during

the incident.

           Nevertheless, the dissent maintains that the jury was

required to find that Paul consciously disregarded the risk that

the jabbing would cause Charles’ death.         As stated, however, Paul

testified that he was not aiming for any particular part of

Charles’ body, and it appeared that Charles was trying to fend

off the jabs and suffered “defensive injuries” but no skull

fractures according to Dr. Suzuki.        Paul never testified that he

consciously disregarded the risk that his conduct would cause

Charles’ death, and in fact, his testimony essentially rejected



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such a contention as he indicated “At that time I wasn’t

thinking.    My mind was just - -.”

            Thus, it is the duty of a jury, and not an appellate

court, to weigh such evidence; it would be contrary to

fundamental principles of our jury system to hold, as the dissent

urges, that as a matter of law the jury “could not have” found

assault in the first degree “without also finding” that Paul

consciously disregarded the risk that the jabbing would cause

Charles’ death.

            It bears repeating that the jury in this case evaluated

Paul’s intent during the incident and, based upon its

consideration of all the evidence, concluded that the government

had not proved that Paul intended to cause Charles’ death or that

Paul was aware that his conduct was practically certain to have

that result.    Thus, it would appear that the jury did give some

weight to Paul’s testimony regarding the events.

            However, because the jury was not permitted to consider

assault in the first degree, the jury was compelled to either

acquit Paul entirely or convict him of manslaughter.            Since Paul

had acknowledged that he had tried to hurt Charles for what

Charles had done to Debbie and because the jury did not have an

included offense alternative, the jury had little choice but to

return a verdict of manslaughter.         Keeble v. United States, 412

U.S. 205, 212-13 (1993) (requiring instruction on lesser-included

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offenses protects defendant from the danger that “[w]here one of

the elements of the offense charged remains in doubt, but the

defendant is plainly guilty of some offense, the jury is likely

to resolve its doubt in favor of conviction”).

            Unequivocally, this is not a case where the evidence

requires a verdict of manslaughter where Paul’s state of mind

“remains in doubt.”      Id.   Under the facts of this case, a jury

may or may not determine that Paul “consciously disregarded” the

risk that his conduct would cause Charles’ death.            But that

decision is for a jury, and not for this court as a matter of

law, as the dissent contends.21

                                    III.

            Based on the foregoing, the ICA’s and the circuit

court’s judgments are vacated and this case is remanded to the

circuit court for a new trial.


Randall K. Hironaka                        /s/ Paula A. Nakayama
for petitioner
                                           /s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima
for respondent                             /s/ Sabrina S. McKenna

                                           /s/ Richard W. Pollack




      21
            In light of our determination that there was a rational basis in
the evidence for the jury to acquit Paul of manslaughter and convict him of
assault in the first degree, we do not address the dissent’s reading of the
term “charged offense” in HRS § 701-109(5).

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