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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000396
                                                              24-DEC-2013
                                                              07:54 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o—


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

                                    vs.

     BLADESIN-ISAIAH BAILEY, Petitioner/Defendant-Appellant,

                                    and

          ANDREW JOSIAH RODRIGUEZ, Respondent/Defendant.


                            SCWC-12-0000396

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-12-0000396; CR. NO. 10-1-0819)

                           December 24, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
                  OPINION OF THE COURT BY ACOBA, J.

          We hold, first, that proof that any part of an offense

occurred on the island of Oahu is sufficient to establish venue

in the first judicial circuit.       Here, because several witnesses

testified that the alleged Kidnapping committed by Petitioner/

Defendant-Appellant Bladesin-Isaiah Bailey (Petitioner) occurred

on the island of Oahu, there was sufficient evidence to

demonstrate that the first judicial circuit was the correct

venue.
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            Second, we hold that Respondent-Plaintiff/Appellee

State of Hawai#i (the State) must prove beyond a reasonable doubt

that substantial bodily injury was caused by the defendant in

order to disprove the mitigating defense that reduces the offense

of Kidnapping, Hawai#i Revised Statutes (HRS) § 707-720(3) (Supp.

2008)1, from a Class A felony2 to a Class B felony,3 because,

inter alia, the victim was not suffering from substantial bodily

injury when released.

            Third, we hold that the State must only disprove one of

the three elements of the Class B mitigating defense set forth in

HRS § 707-702(3) beyond a reasonable doubt to establish that a

defendant is not entitled to the defense.          In other words, the

      1
            HRS § 707-720 provides in relevant part as follows:

            § 707-720   Kidnapping.

            (1) A person commits the offense of kidnapping if the
            person intentionally or knowingly restrains another
            person with intent to:
            . . .
                  (e) Terrorize that person or a third person;
            . . . .
            (2) Except as provided in subsection (3), kidnapping
            is a class A felony.
            (3) In a prosecution for kidnapping, it is a defense
            which reduces the offense to a class B felony that the
            defendant voluntarily released the victim, alive and
            not suffering from serious or substantial bodily
            injury, in a safe place prior to trial.

(Emphasis added.)

      2
            Kidnapping is a Class A felony. HRS § 707-720(2). The court
ordinarily must sentence a defendant convicted of a Class A felony to a
maximum length of imprisonment of twenty years, without the possibility of
suspension of sentence or probation. HRS § 706-659 (Supp. 1994). The minimum
length of imprisonment is to be determined by the Hawai#i Paroling Authority.
Id.

      3
            A defendant convicted of a Class B felony ordinarily must be
sentenced to a maximum length of imprisonment of ten years, with the minimum
length of imprisonment to be determined by the Hawai#i paroling authority.
HRS § 706-660 (1993).

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State must establish beyond a reasonable doubt that a defendant

did not voluntarily release the victim, or that the defendant

caused serious or substantial bodily injury to the victim, or

that the victim was not released in a safe place.            In this case,

Petitioner did not challenge the jury’s special interrogatories

finding that the victim was not voluntarily released, and that

the victim was not released in a safe place.           Hence, Petitioner

was not entitled to the Class B mitigating defense.

            For the reasons stated herein, the August 21, 2013

Judgment of the Intermediate Court of Appeals (ICA)4 filed

pursuant to its July 10, 2013 Summary Disposition Order (SDO),

and the March 19, 2012 Judgment of Conviction and Sentence of the

Circuit Court of the First Circuit (the court)5 are affirmed.

                                     I.

                                     A.

            On the morning of May 15, 2010, Ezra Kualaau,

(Complainant) contacted Andrew Rodriguez (Rodriguez) through

several text messages and phone calls, to buy crack cocaine.

After picking up Petitioner, the two defendants headed to

Complainant’s house in a white “Chevy” Impala.           Complainant,

wearing basketball shorts and no shirt or shoes, joined

Petitioner and Rodriguez at a park across the street from his




      4
            Chief Judge Craig H. Nakamura and Associate Judges Alexa D.M.
Fujise and Lisa M. Ginoza presided.

      5
            The Honorable Karen S.S. Ahn presided.

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house.    Complainant and his mother testified that their house was

located on Ka#ahumanu Street in Waiau, on the island of O#ahu.

            Rodriguez sat in the driver’s seat, Petitioner in the

front passenger’s seat, and Complainant in the back seat.             After

noticing a police car pass by, Petitioner and Rodriguez “looked

at each other and then Petitioner went to the trunk.”

Complainant then started “getting punched[,]” and “whacked on the

side of [his] head in [his] temple and then phased out.”            After

getting punched the first time by Petitioner, Complainant

testified that he fell onto his left side, at which time

Petitioner continued to punch him a couple of more times.

Rodriguez then got out of the car and handcuffed Complainant

behind his back.    Petitioner “grabbed [Complainant] at [his]

ankles . . . and they took [him] to the trunk.”           They closed the

trunk with Complainant inside and drove off.

            Two witnesses, Renante Lagat (Renante) and his wife

Melva Lagat (Melva), were driving on Komo Mai Drive past the

Waiau Park and noticed a white car by itself and “saw two guys

put an individual in the car[,]” with his hands “bound” at his

back.    The individual “being thrown into the trunk of the car”

was “[a] white male, fairly skinny” with “no shirt.”            Renante

testified that “one of . . . the ones putting the person in the

car” was “wearing a red shirt.”       Honolulu Police Department

Officer Donn Manzano (Officer Manzano) also testified that he was

patrolling the Pearl City area near Komo Mai Drive on the island



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of Oahu when he noticed a white vehicle in the parking lot of

Waiau District Park.

          While in the trunk, Complainant managed to remove his

cell phone from his pocket, and texted his mother to tell her

that he had been kidnapped.      Complainant also called 911.         At the

end of a cul-de-sac street, the car stopped and the defendants

took Complainant out of the trunk.        A plastic bag and cloth were

put over Complainant’s head.

          Complainant testified that after pulling him out of the

trunk, the two defendants proceeded to walk him up a trail, “or

not a trail, but bushes[,]” during which he was “pushed over

rocks, through bushes.”     Complainant further related that

Petitioner threatened that Complainant was not to “make noise or

I’m gonna put -- or I’m gonna shoot you.”         At the top of the

trail, Petitioner and Rodriguez “sat [him] down and started

punching [him] in the face” “multiple times” while the bag was

still over Complainant’s head, and he was still handcuffed behind

[his] back.   They then “shoved [Complainant] to the ground[,]

. . . ripped the bag off [his] face and ran off.”           Complainant,

after hearing the car door slam, ran back down the trail to get

help.

          Officer Halama Wong (Officer Wong) was patrolling the

Moanalua Valley area of Oahu when she was dispatched to Onipa#a

Street, where Complainant had made a call to the police from a

nearby house.   When Officer Wong arrived, Complainant was

handcuffed and crying, with “abrasions” on his face, chest, and

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back, as well as what appeared to be a swollen nose.            According

to Officer Wong, Complainant appeared frightened, and “had a hard

time speaking.”

            Complainant was taken to Kaiser Moanalua Emergency Room

by his mother, where he was examined by Dr. Saba Russell (Dr.

Russell).   During the examination, Dr. Russell observed “multiple

contusions and abrasion throughout [Complainant’s] extremities,

the arms and legs, as well as the face.”         She also found that he

had suffered a nasal bone fracture.        The age of the fracture was

indeterminable based on the X-ray.        However, Dr. Russell opined

that the swelling and bruising over the cheek and nose were

consistent with characteristics of a new fracture.

            While Complainant was being examined for his injuries,

Officer Tay Deering (Officer Deering) was dispatched to a

possible Kidnapping at Waiau District Park on the island of

O#ahu, but, on the way, observed and stopped a white “Impala” on

Salt Lake Boulevard.     Officer Legaee Fatu (Officer Fatu), who was

with Officer Deering at the time, identified Petitioner as the

passenger in the car and noticed that he was wearing a red shirt.

Officer Deering identified Rodriguez as the driver of the car.

Both Officer Fatu and Officer Deering testified that neither

Rodriguez nor Petitioner appeared to have any injuries, and

neither complained of having any.

                                    B.

            The State indicted Petitioner and Rodriguez on May 20,

2010 on one count of Kidnapping (Count I) and one count of

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Assault in the Second Degree6 (Count II):
           COUNT I: On or about the 15 th day of May, 2010, in the City
           and County of Honolulu, State of Hawai#i, [Rodriguez] and
           [Petitioner], did intentionally or knowingly restrain
           [Complainant], with intent to terrorize him, . . . thereby
           committing the offense of Kidnapping, in violation of
           Section     . . . 707-720(1)(e) of the [HRS].

           COUNT II: On or about the 15 th day of May, 2010, in the
           City and County of Honolulu, State of Hawai#i, [Rodriguez]
           and [Petitioner] did intentionally or knowingly cause
           substantial bodily injury to [Complainant], and/or did
           recklessly cause substantial bodily injury to [Complainant],
           thereby committing the offense of Assault in the Second
           Degree, in violation of Section 707-711(1)(a) and/or Section
           707-711(b) of the [HRS].

(Emphases added.)      Trial began on January 6, 2012.        The witnesses

called in the State’s case were Complainant, Complainant’s

mother, Renante, Melva, Dr. Russell, and Officers Fatu, Deering,

Wong, and Manzano.

           At the close of the State’s case, Petitioner moved the

court for a judgement of acquittal.         His argument was that the

State failed to prove venue.        The court denied Petitioner’s

motion.   The following discussion occurred:
                 [Mr. Luiz (Counsel for Petitioner)]: Actually, the
           State never proved venue in this case. Not one witness from
           the beginning to the end ever testified that this occurred
           in the City and County of Honolulu. No witness was asked
           that. As a matter of fact, I kept track of all the
           witnesses who testified and each officer who testified was
           never asked if this occurred in the City and County of
           Honolulu . . . and because venue is absolutely essential
           that must be proven that this did in fact occur in the City
           and County of Honolulu and not the County of Maui, the


     6
           HRS § 707-711 (provides in relevant part as follows:

           § 707-711   Assault in the second degree.

           (1) A person commits the offense of assault in the second
           degree if:
           (a) The person intentionally or knowingly causes substantial
           bodily injury to another;
           (b) The person recklessly causes serious or substantial
           bodily injury to another;
           . . .

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          County of Big Island. We [are] entitled to a directed
          verdict on all counts since the State rested without proving
          venue.
                 THE COURT: You know, my notes show that venue was–the
          venue question was asked of [Complainant] regarding him
          being in front of his house. And in addition, the venue
          question was asked of Officer Manzano regarding the Waiau
          District Park. I’m going to look at the evidence in light
          more favorable to the Government. I can take judicial
          notice, I think, of venue, and I do so. But looking at the
          evidence in the light most favorable to the Government and
          considering the jury’s right to weigh credibility and draw
          all reasonable inferences of fact I believe a reasonable
          juror can conclude guilt beyond a reasonable doubt as to
          Kidnapping and the Assault II with regard to [Petitioner]
          . . . .
                 THE COURT: Let me just note that I’m looking at my
          notes with regard to the venue issue. The venue question
          was asked of Officer [] Wong as to Onipa#a Street where
          [Complainant] was allegedly found . . . I think there’s a
          reasonable inference that that car never left this island,
          so venue was established. Okay. All right . . .
                 [Mr. Luiz]: . . . I never heard the question on City
          and County of Honolulu, I heard–
                 THE COURT: Well, it just has to be this island.

(Emphases added.)

          While Petitioner exercised his right not to testify,

Rodriguez did testify.     Rodriguez recounted that Complainant

contacted him to buy drugs, but that he and Petitioner met

Complainant in order to retrieve money that a friend claimed

Complainant stole from her.      Rodriguez admitted to handcuffing

Complainant, putting him in the trunk, as well as driving to

Moanalua with Complainant in the trunk of the car, because

“that’s where [Complainant] said the person who was holding the

money was at.”    Moreover, Rodriguez testified that when he

stopped the car and opened the trunk, Complainant jumped out of

the trunk and ran into some neighbors’ yard; Rodriguez also

stated that at that point, he drove away.         Rodriguez claimed that

he did not place a bag over Complainant’s head and he did not

walk Complainant up a trail.

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                                     C.

            The court instructed the jury in relevant part as

follows:
            In Count 1, [Petitioner] is charged with the offense of
            Kidnapping.
            . . . .
            There are three material element of the offense of
            [K]idnapping, each of which the prosecution must prove
            beyond a reasonable doubt.
            . . . .
                  1. That, on or about May 15, 2010, in the City and
                  County of Honolulu, State of Hawai#i, [Petitioner]
                  restrained [Complainant]; and
                  2. That [Petitioner] did so intentionally or
            knowingly; and
                  3. That [Petitioner] did so with the intent to
            terrorize [Complainant].

            In Count 2, [Petitioner] is charged with the offense of
            Assault in the Second Degree.
            . . . .
            There are two material elements of the offense of Assault in
            the Second Degree, each of which the prosecution must prove
            beyond a reasonable doubt.
                  1. That, on or about May 15, 2010, in the City and
            County of Honolulu, State of Hawai#i, [Petitioner] caused
            substantial bodily injury[7 ] to [Complainant]; and
                  2. That [Petitioner] did so intentionally, knowingly,
            or recklessly.

As to the lesser included offense of Assault in the Third Degree,

the court instructed the jury, in part, as follows:
            In Count 2, as to [Petitioner], if, and only if, you find
            [Petitioner][] not guilty of Assault in the Second Degree,
            or you are unable to reach a unanimous verdict as to this
            offense, then you must consider whether [Petitioner] is
            guilty or not guilty of the included 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




      7
            “Substantial bodily injury” is defined as bodily injury which
causes “(1) A major avulsion, laceration, or penetration of the skin; (2) A
burn of at least second degree severity; (3) A bone fracture; (4) A serious
concussion; or (5) A tearing, rupture, or corrosive damage to the esophagus,
viscera, or other internal organs.” HRS § 707-700 (Supp. 2008).

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            the Third Degree,[8 ] each of which the prosecution must prove
            beyond a reasonable doubt.
            . . . .
                  1. That, on or about May 15, 2010, in the City and
            County of Honolulu, State of Hawai#i, [Petitioner] caused
            bodily injury[ 9] to [Complainant]; and
                  2. That [Petitioner] did so intentionally, knowingly,
            or recklessly.

            As to accomplice liability, the court’s instructions

stated in relevant part as follows:
                  A defendant charged with committing an offense may be
            guilty because he is an accomplice of another person in the
            commission of the offense. The prosecution must prove
            accomplice liability beyond a reasonable doubt.
                  A person is an accomplice of another in the commission
            of an offense if, with the intent to promote or facilitate
            the commission of the offense, he aids or agrees or attempts
            to aid the other person in the planning or commission of the
            offense.
                  Mere presence at the scene of an offense or knowledge
            that an offense is being committed, without more, does not
            make a person an accomplice to the offense. However, if a
            person plans or participates in the commission of an offense
            with the intent to promote or facilitate the offense, he is
            an accomplice to the commission of the offense.

(Emphases added.)
                                      D.

            In his closing argument, the prosecutor asserted that

Complainant suffered substantial bodily injury when the punches

to his face fractured his nose:
            [The prosecutor]: There’s [] no dispute that [Complainant]
            was found on Onipa#a Street still handcuffed, Officer Wong
            told you that. [Complainant] was crying. He had scratches


      8
            HRS § 707-712 provides in relevant part as follows:

            Assault in the third degree.

            (1) A person commits the offense of assault in the third
            degree if the person:
                  (a)   Intentionally, knowingly, or recklessly causes
                        bodily injury to another person; or
                        . . . .
            (2) 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.

      9
            “Bodily injury” is defined as “physical pain, illness, or any
impairment of physical condition.” HRS § 707-700.

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          and cuts, not only to his facial area which corroborated the
          punches that he got but also to his body and the shoulder
          and the body area.

                 What’s also undisputed is that this is how
          [Complainant] looked when he was found on Onipa#a Street with
          a swollen nose, the scratches and cuts on his face as well
          as the swollen wrist where Officer Wong told you that's the
          result after he took off the handcuffs from [Complainant] on
          Onipa#a Street.

                There’s also no dispute that he did suffer the
          substantial bodily injury. Doctor told you that there was a
          bone fracture; that that bone fracture was consistent with
          the swollen nose injury that she observed on [Complainant]
          on May 15th, 2010.

                After reading the x-ray, she told you that it was a
          nasal bone fracture. Although, as she testified, because of
          the nature of the fracture on the nasal bone she couldn't
          tell exactly when that bone was broken. [Complainant] told
          you that he had no prior broken nose. So based on all of
          that there’s a reasonable inference that that fracture, the
          nasal bone fracture was a result of what happened on May
          15th, 2010.

          [Complainant] also sustained consistent injuries. The
          pictures that they took on May 15th, 2010 corroborate
          [Complainant’s] statement that he was punched to the face,
          mostly to the face.

          . . . .

(Emphases added.)

          The prosecutor also asserted that Petitioner and

Rodriguez had not met the requirements for the mitigating defense
that would reduce the Kidnapping charge to a Class B felony:
                As to the interrogatories that you have to answer,
          there are questions about the release -- in the shape and
          the form that [Complainant] was released by the defendant.
          First, is whether it was voluntary. And, frankly, given the
          state of the evidence on the credible evidence, yeah, they
          did let him go in that it's not like the police had to come
          and release the trunk and let [Complainant] out or anything
          like that, okay. So, for what it's worth, it is not in that
          kind of situation. So was he released voluntarily? Okay,
          questionable, but -- but as to whether he was released alive
          "and" not suffering from serious or substantially bodily
          injury. Now there's an "and" which means that he had to had
          not suffered any serious or substantial bodily injury. And
          the substantial bodily injury we had talked about is the
          Assault 2, the bone fracture.

                Also, safe place. Is releasing [Complainant] where now
          we know it’s on top of Onipa#a Street. At this point, based


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          on the evidence, we know that it’s near a residential area.
          But at the time that [Complainant] was released, face down
          right after having his bag and the cloth taken off, after
          he’s been pushed up the hill, anywhere between 5 to 15
          minutes -- he told you on the stand it was 5. He might have
          told, at a prior proceeding, 15 minutes. Is that a safe
          place where he doesn’t know where to come out? There’s no
          path. In fact, he goes the other way because he thinks that
          the defendants are gonna come back up the way they came --
          they left. State will submit to you that it’s not a safe
          place that he was released at. It was not like he was
          released at a hospital, back at his house, back at the Waiau
          District Park, back at the police station. So State would
          submit to you that where he was released is not a safe
          place. It’s just that [Complainant], throughout this
          kidnapping, throughout this event on May 15th, 2010, was
          thinking . . . even when he was released it was his own
          thinking, quick thinking that got him out of that secluded
          area and down to Onipa#a Street.

(Emphases added.)

          In his closing argument, Mr. Hawk, counsel for

Rodriguez, asserted that the jury should reduce the Kidnapping

charge to a Class B felony:
          [Mr. Hawk]: Was he voluntarily released? Absolutely. He ran
          away. Was there serious bodily injury? There’s no fracture, so
          there’s no serious or substantial bodily injury. And is Onipa#a
          Street a safe place? I would think so. I mean, there was no
          evidence that it was a dangerous place. It’s not like he was
          released in the middle of the ocean or in the middle of the night
          in some war zone. I mean, it’s just a residential area. There’s
          nothing that’s dangerous about that place.

          . . . .

          Mr. Hawk also maintained that because there was not

proof beyond a reasonable doubt that the fracture was suffered

during the Kidnapping, Rodriguez was only guilty of assault in

the third degree:

          What else did he do? Well, he was there when [Petitioner] got
          slapped, right? He admitted - - not when [Petitioner] got slapped
          but when [Petitioner] slapped [Complainant]. So he’s an
          accomplice to that slap. That’s Assault in the Third Degree.
          Slapping someone in the face causes pain, which is bodily injury,
          so he’s guilty of Assault in the Third Degree and not guilty of
          Assault in the Second Degree because there’s no fracture.




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          Mr. Luiz, counsel for Petitioner, argued that the jury

should acquit Petitioner of Kidnapping and Assault in the Second

Degree but convict him of Unlawful Imprisonment in the Second

Degree and Assault in the Third Degree.         As to the substantial

bodily injury, Mr. Luiz asserted that Dr. Russell did not testify

as to when Complainant fractured his nose and therefore

“[t]here’s no proof beyond a reasonable doubt that [Complainant]

sustained a fracture while he was with [Petitioner].”

          Finally, apparently in response to the State’s argument

regarding reducing the Kidnapping offense to a Class B felony,

Mr. Luiz stated that:
          They released [Complainant]. He was safe, residential area.
          They didn’t drop him off anywhere where he could be hurt.
          He just ran to a house and asked for more help from there.
          He was released unharmed, and he didn’t have any substantial
          bodily injuries.

          In her rebuttal argument, the prosecutor argued that

Complainant’s testimony that he had not previously broken his

nose demonstrated that the bone fracture resulted from

“[Rodriguez] and [Petitioner] hitting [Complainant] in the face”:
          [The prosecutor]: [Dr. Russell] saw injuries that are consistent
          with what would have cause a bone fracture on May 15 th, 2010; that
          they were swollen.

          And what did [Complainant] tell you? I’ve never broken my nose.
          I’ve never had a broken nose. So based on all of that what’s the
          reasonable inference? That bone fracture happened as a result of
          [Rodriguez] and [Petitioner] hitting [Complainant] in the face.

(Emphasis added.)

                                    E.

          On January 11, 2012, the jury found Petitioner and

Rodriguez guilty as charged of Kidnapping and guilty of the


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lesser included offense of Assault in the Third Degree.            The jury

returned the following verdicts and answers to special

interrogatories:
          As to Count 1, Kidnapping:

          WE THE JURY in this case find the Defendant Guilty as charged.


          As to Count 2, Assault in the Second Degree:

          WE THE JURY in this case find the Defendant Guilty of the included
          offense of Assault in the Third Degree.


          SPECIAL INTERROGATORY:

          Did the prosecution prove beyond a reasonable doubt that the fight
          or scuffle was not entered into by mutual consent? (Your answer
          to this question must be unanimous).

          Yes.

          SPECIAL INTERROGATORY:

          1. Has the prosecution proven beyond a reasonable doubt that
          prior to trial [Petitioner] did not release [Complainant]
          voluntarily?

          Yes.

          2. Has the prosecution proven beyond a reasonable doubt that
          prior to trial [Petitioner] did not release [Complainant] alive
          and not suffering from serious or substantial bodily injury.

          Yes.

          3. Has the prosecution proven beyond a reasonable doubt that
          prior to trial [Petitioner] did not release [Complainant] in a
          safe place?

          Yes.

(Emphases added).

                                    F.

          On January 20, 2012 Petitioner filed a motion for

judgment of acquittal concerning the following issues: (1) “[t]he

State did not properly prove venue in this case.           The [i]sland of

Oahu was merely mentioned by a police officer. [No] witness


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state[d] that any of what they testified to occurred in the City

and County of Honolulu[,]” and (2) “[t]he Class A felony

[Kidnapping] should be reduced to Class B Kidnapping” because “it

is undisputable [sic] that . . . Complainant was released from

the trunk by Rodriguez without serious or substantial injury as

shown by the jury acquitting [him] of Assault in the second

degree . . . .”

          During a hearing on the motion for judgment of

acquittal, Petitioner argued that the jury verdicts were

inconsistent, and repeated his argument that the State failed to

prove venue.   Before denying Petitioner’s motion, the following

discussion between the Court and counsel for Petitioner occurred:
          [Mr. Luiz]: And I really believe that’s an inconsistent
          verdict, Your Honor . . . You can’t find–they’re all part of
          the same crime, it was all the same time frame, the same
          happening. And we have an inconsistency.”

          THE COURT: Well, not necessarily because there’s another
          possibility you folks haven’t discussed. The possibility is
          that they found substantial bodily injury, the broken nose,
          beyond a reasonable doubt but they weren’t sure who actually
          broke that nose. Because both of there were, you know, the
          testimony was that both of these gentlemen were hitting
          [Complainant] at the end, you know, by the rock, where the
          nose apparently was broken. And so the jury could have found
          there was substantial bodily injury but they didn’t know
          which of the two . . .had actually done the deed.
                The Kidnapping question is do you believe that the
          prosecution has proven beyond a reasonable doubt that
          [Petitioner] voluntarily released the victim alive and not
          suffering from substantial bodily injury in a safe place
          prior to trial . . . it doesn’t call for determination of
          which defendant, you know, broke the nose, it calls for the
          defendant having left the complaining witness there with a
          broken nose, a broken bone . . . I don’t think the verdicts
          are necessarily inconsistent so I would have to disagree
          with you there.

          [Mr. Luiz]: Well, if they couldn’t agree on who did the
          crime, then that would necessarily acquit both clients
          because you can’t prove guilt beyond a reasonable doubt.

          THE COURT: No but they--they found that each client was
          proven beyond a reasonable doubt to have caused physical


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          pain and that’s why they convicted these two gentlemen for
          Assault 3. It’s a very interesting verdict. Actually it
          may well have been a very intelligent jury. I mean, you
          know.

(Emphases added.)
          With regard to the venue issue, Mr. Luiz insisted that

the prosecution had to establish the incident occurred in “[t]he

City and County of Honolulu” in order to prove venue.            The court

stated the following:
          THE COURT: The statutes say that the prosecution has to
          prove beyond a reasonable doubt facts supporting venue. And
          venue of course is on this island of Oahu . . . venue was
          testified to by witnesses for the Waiau District Park, the
          complaining witness’s home, and finally, Onipa#a Street
          where the complaining witness was eventually found.

          And the testimony is undisputed that all other times he was
          in the car trunk and they were driving on roads, like they
          never went on a boat, they never went on a plane. So can I,
          should I, you know, find that the government did not prove
          facts supporting venue beyond a reasonable doubt on that
          evidence? I don’t think I can.

          On March 19, 2012, Petitioner and Rodriguez were each

sentenced as young adult defendants to an eight-year term of

imprisonment for Kidnapping and a one-year term of imprisonment

for the Assault in the Third Degree.        Petitioner appealed.

          On August 21, 2013 the ICA affirmed the convictions.

                                    II.

          In his Application, Petitioner asks whether the

judgments of the ICA and the court should be vacated because (1)

there was a “lack of substantial evidence regarding venue in the

City and County of Honolulu;” and (2) “the verdict was

inconsistent [because] [Petitioner] was not found guilty of

assault in the second degree” but instead was found guilty of the

lesser included offense of assault in the third degree, but

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nevertheless “was found guilty of Class A felony [K]idnapping.”

A Response was filed on October 2, 2013.         No Reply was filed.

                                   III.

            With respect to the first question, the ICA observed

that HRS § 603-1 (Supp. 1994) states that “[t]he State is divided

into four judicial circuits . . . and that [t]he first judicial

circuit is the island of Oahu[,]” and that “the Revised Charter

of the City and County of Honolulu (RCCCH) § 1-102 (2000)”

indicates “that the City and County of Honolulu encompasses the

island of Oahu.”    State v. Bailey, CAAP-12-0000396, 2013 WL

3776169, at *1 (Haw. App. July 10, 2013) (SDO).           The ICA stated

that Petitioner “fails to point to any legal authority . . . that

the phrase ‘City and County of Honolulu’ must be used . . . and

that venue is not established by using the phrase ‘island of

Oahu[.]’”    Id.   The ICA further held that there was “testimony at

trial . . . establishing that the events took place on . . .

Oahu[,]” and the court “took judicial notice of venue when it

noted that the geographic areas described in various testimony

were all on the island of Oahu[.]”        Id.   Accordingly, the ICA

concluded that “[v]iewing the evidence in the strongest light for

the prosecution, sufficient evidence was adduced . . . that the

offense took place on . . . Oahu, thus establishing venue beyond

a reasonable doubt.”     Id. at *2.

            With respect to the second question, Petitioner argued

that “[Complainant] was released from the trunk . . . without

serious or substantial injury[,]” thus Petitioner “is guilty only

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of a [C]lass B Kidnapping felony.”        Id.   The ICA countered that,

as the court noted, “the jury could have concluded that:

[Complainant] had suffered ‘substantial bodily injury’ (i.e. a

broken nose)[,]” “a jury could find that a person suffered

‘substantial bodily injury,’ even though the jury could not

determine who caused that ‘substantial bodily injury[,]’” and

“the State had not . . . [proven] who caused the broken nose[,]”

but Petitioner “caused lesser ‘bodily injury’ for purposes of the

offense of Assault in the Third Degree.”         Id.   (emphases

omitted).   Accordingly, the ICA concluded thus “there was

sufficient evidence for the jury to conclude that Complainant’s

nose was broken and thus, he suffered ‘substantial bodily

injury.’”   Id. at *3.    Further, the ICA observed “the jury

rejected [Petitioner’s] argument . . . that the offense should be

reduced to a Class B felony Kidnapping offense . . . [in its

answers to the] . . . special interrogatories[.]”           Id.

                                    IV.

            In connection with the first question, Petitioner

maintains that (1) “HRS § 701-114[(1)(d)] [(1993)] provides in

relevant part . . . [that] no person may be convicted of an

offense unless [facts establishing venue] . . . are proven beyond

a reasonable doubt,” (2) “[Hawai#i Rules of Penal Procedure

(HRPP)] Rule 18, [in part] provides: . . . the prosecution shall

be had in the circuit in which the offense or any part of it was

committed,” (3) “proof that an event occurred in the City and



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County of Honolulu is proof that it occurred within the first

judicial circuit,” and (4) “[t]he [i]sland of Oahu was merely

mentioned by a police officer” and not “a single witness state[d]

that any of what they [sic] testified to occurred within the

venue of the City and County of Honolulu.”          With respect to the

ICA’s decision, he maintains that (1) “State v. Puaoi, 78 Haw.

185, 190[, 891 P.2d 272, 277] ([]1995)[,] . . . is

distinguishable because in that case it was the prosecutor who

specifically requested judicial notice of facts establishing

venue, not the court sua sponte taking judicial notice of facts

establishing venue[,]” and (2) “[i]n the absence of proof of

venue, ‘the innocence of the defendant is presumed.’ [(Citing]

HRS § 701-114(2)[ and] State v. Black, 66 Haw. 530, 668 P.2d 32

(1983) (prosecution’s failure to prove venue resulted in

defendant’s acquittal)[)].”10

                                     V.

            Under HRPP Rule 18, “the prosecution shall be had in

the circuit in which the offense or any part of it was

committed.”    (Emphasis added.)      Thus, to establish venue, it must

be proven that “any part” of the offense occurred in the circuit



      10
            In its Answering Brief, the State asserted that the testimony from
five different witnesses proved that the offenses occurred on the island of
Oahu. The State also contended that the ICA could “take judicial notice that
the locations testified to - Kaahumanu Street in Waiau, Waiau District Park,
Waiau Fire Station, Komo Mai Drive in Pearl City, Onipaa Street in the Salt
Lake-Moanalua Valley area, Kaiser Moanalua Emergency Room, and Salt Lake
Boulevard - collectively, are located on the island of Oahu, and in the first
judicial circuit.” (Citing Puaoi, 78 Hawai#i at 190, 891 P.2d at 277.) In
its Response, the State asserted that because Petitioner “reiterates his
argument [before the ICA], [the State] relies on its answering brief.”

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in which the case is tried.        Pursuant to HRS § 701-114(1)(d)11,

“no person may be convicted of an offense unless . . . [venue is]

proved beyond a reasonable doubt[.]”          A defendant may move for a

judgment of acquittal “on the grounds that the prosecution has

not proved the necessary element of venue.”            State v. Kwak, 80

Hawai#i 297, 305, 909 P.2d 1112, 1120 (1995); see also State v.

Miyashiro, 3 Haw. App. 229, 232-33, 647 P.2d 302, 304-05 (1982).

            “The standard to be applied by the trial court in

ruling upon a motion for a judgment of acquittal is whether, upon

the evidence viewed in the light most favorable to the

prosecution and in full recognition of the province of the [trier

of fact], a reasonable mind might fairly conclude guilt beyond a

reasonable doubt.”       State v. Pone, 78 Hawai#i 262, 265, 892 P.2d

455, 458 (1995) (internal quotation marks omitted).            “An

appellate court employs the same standard of review.”             Id.

            This case was tried in the first judicial circuit.

“The first judicial circuit covers the [i]sland of O#ahu, all

other islands belonging to the state (other than Maui, Molokai,

Lanai, Kahoolawe, Molokini, Hawai#i, Kauai, and Niihau) . . . .”

State v. Correa, 5 Haw. App. 644, 650, 706 P.2d 1321, 1325 (1985)


      11
            HRS § 701-114(1)(d) provides in relevant part as follows:

            § 701-114   Proof beyond a reasonable doubt.

            (1) Except as otherwise provided in section 701-115, no
            person may be convicted of an offense unless the following
            are proved beyond a reasonable doubt:
            . . .
            (d) Facts establishing venue[.]

(Emphases added.)

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(citing HRS § 603-1(1)).      “Consequently, proof that an event

occurred . . . on the [i]sland of O#ahu is proof that it occurred

within the first judicial circuit.”        Id.   Here, viewed in the

light most favorable to the State, a reasonable mind could

“fairly conclude” that the offense occurred on the island of

O#ahu beyond a reasonable doubt.

           Complainant indicated that he first met the defendants

in front of his house “on Kaahumanu Street,” “on the island of

Oahu[.]”   Complainant related that after meeting the defendants,

they went to the park that was “directly across the street” from

his house.   Officer Deering stated that the park was in the same

area as Ka#ahumanu Street “on the island of Oahu.”           Similarly,

Officer Manzano testified that the park was near the Waiau Fire

Station, and the Fire Station was “on the island of Oahu.”

           At the park, the defendants “whacked [Complainant] on

the side of [his] head,” handcuffed him, and put him in the trunk

of their car.   The defendants drove with Complainant in the trunk

for “about an hour.”     The defendants removed Complainant from

their car and took him to a spot on a hill, and then left.

Complainant then went down the road to an “old man’s house and

asked him to call the police.”       Officer Wong then interviewed

Complainant.    Officer Wong stated that the address of the house

was “1720 Onipa#a Street,” and the house was “on the [i]sland of

Oahu.”

           Based on the foregoing, the evidence adduced at trial

demonstrates that the offense, or at least a “part of it,” see

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HRPP Rule 18, occurred on the island of O#ahu.           The witnesses’

testimony indicates that the offense both began and ended on the

island of O#ahu.    Moreover, as stated by the court, “the

testimony is undisputed that at all other times he was in the car

trunk and they were driving on roads, [] they never went on a

boat, they never went on a plane[.]”         Thus, viewing the evidence

in a light most favorable to the State, a reasonable mind could

have “fairly concluded” that the events occurred on the island of

Oahu and thus, venue in the first circuit was established beyond

a reasonable doubt.12     Pone, 78 Hawai#i at 265, 892 P.2d at 458.

                                     VI.

                                     A.

            In connection with the second question in his

Application, Petitioner contends that “Petitioner was [e]ntitled

to a [j]udgment of [a]cquittal as to Class A Felony Kidnapping”

       12
             Petitioner also asserts that the court and ICA erred in taking
judicial notice of venue. However, as discussed supra, sufficient evidence
was adduced to establish that a part of the offense occurred on the island of
Oahu without reference to judicial notice. In any event, Petitioner’s
assertion that the court could not sua sponte take judicial notice of venue is
incorrect.
             Pursuant to Hawai#i Rules of Evidence (HRE) Rule 201 (1993), a
court may take judicial notice of adjudicative facts. “‘Adjudicative facts
. . . are the kind of facts that are ordinarily decided by the trier of fact;
for example, who did what to whom, when, where, how, and why[.]” Puaoi, 78
Hawai#i at 190, 891 P.2d at 277. In Puaoi, this court held that under HRE
Rule 201, “appellate courts may take judicial notice of venue[.]” Id. Under
HRE Rule 201(c), “[a] court may take judicial notice, whether requested or
not.” (Emphasis added.) Further, under HRE Rule 201(f), "Judicial notice may
be taken at any stage of the proceeding.” Thus, the court was entitled to sua
sponte take judicial notice of venue.
             Similarly, in State v. Schnabel, 127 Hawai#i 432, 279 P.3d 1237
(2012), this court discussed the propriety of sua sponte taking judicial
notice in the context of HRE Rule 202 (1993), which governs judicial notice of
law. This court held that evidence from prior juvenile convictions should not
have been admitted in a subsequent criminal prosecution under HRS § 571-84(h)
(2006 Repl.). Id. at 444, 279 P.3d at 1249. That statute was not raised by
either party; however, this court held that the trial court could have taken
judicial notice of the statute. Id.

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because of an “inconsistent verdict.” [Application at 8]             As

noted, HRS § 707-720, Kidnapping, provides in relevant part:
            . . . .
            (2) Except as provided in subsection (3), kidnapping is a
            Class A felony.
            (3) In a prosecution for kidnapping, it is a defense which
            reduces the offense to a class B felony that the defendant
            voluntarily released the victim, alive and not suffering
            from serious or substantial bodily injury, in a safe place
            prior to trial.

According to Petitioner, he “was acquitted of Assault in the

[S]econd [D]egree but found guilty of the lesser included offense
of Assault in the [T]hird [D]egree.”         Petitioner argues that thus

“[i]t is undisputable [sic] that . . . [Complainant] was released

from the trunk by Rodri[g]uez without serious or substantial

injury as shown by the jury acquitting [Petitioner] of Assault in

the second degree while finding him guilty of the lesser included

offense of Assault in the [T]hird [D]egree.”           (Citing United

States v. Morales, 677 F.2d 1 (1st Cir. 1982).)            Petitioner

concludes then that he “is entitled to a judgment of acquittal as

to Class A felony [K]idnapping[, and a reduction to a conviction

for] . . . Class B felony Kidnapping.”

                                     B.

            In its Answering Brief,13 the State maintained that by

finding Petitioner guilty of the lesser included offense of

Assault in the Third Degree, the jury found that the State

“proved beyond a reasonable doubt that [Petitioner] caused bodily

injury to [Complainant],” but that “the State did not prove


      13
            As stated before, in its Response, the State indicated that it
“relies on its answering brief.”

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beyond a reasonable doubt that [Petitioner] caused substantial

bodily injury to [Complainant].”         The State argues that in

finding Petitioner guilty of Kidnapping as a Class A felony, “the

jury found that (1) [Petitioner] did not release [Complainant]

voluntarily, (2) [Complainant] suffered serious or substantial

bodily injury, and (3) [Petitioner] did not release [Complainant]

in a safe place.”    (Citing HRS § 707-720(3).)        Hence, the State

apparently asserts that the verdicts were not inconsistent

because the verdict indicated that “[Petitioner] caused bodily

injury and that [Complainant] suffered substantial bodily

injury.”   (Emphases in original.)

                                   VII.

           First, the court and the ICA incorrectly concluded that

the mitigating Class B felony defense to Kidnapping required only

a finding that “an alleged victim was suffering from substantial

bodily injury,” but did not require a determination as to “who

caused substantial bodily injury to that alleged victim[.]”

Bailey, 2013 WL 3776169, at *2 (emphasis in the original).             Such

a rule would preclude a defendant from availing himself or

herself of the Class B mitigating defense available in the

Kidnapping statute even if the injury suffered by the victim was

completely unrelated to the alleged Kidnapping.

           The problems created by such an interpretation are

illustrated by the instant case.         As explained in greater detail

infra, the State asserted that Complainant suffered “substantial



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bodily injury” because his nasal bone was fractured.14            However,

Dr. Russell asserted that she couldn’t “determine the age” of the

fracture.    Therefore, in closing argument, defense counsel

asserted that no substantial bodily injury occurred because

“there’s no medical testimony as to when that nose was broken.”15

            Assuming arguendo that Complainant fractured his nasal

bone prior to the Kidnapping, his nose still could have been

fractured at the time that he was released.           At the time of his

release, therefore, he would have been “suffering” from a

fractured nose, and thus “suffering from substantial bodily

injury.”    Hence, under the interpretation of HRS § 707-720

proposed by the court and the ICA, a defendant could not utilize

the Class B mitigating defense even if the substantial bodily

injury sustained by the victim had nothing to do with the

Kidnapping.

            Such a result is clearly contrary to the purpose of the

Class B mitigating defense, to “differentiate according to the

      14
            In closing argument, the prosecutor asserted that “[t]here’s also
no dispute that he did suffer the substantial bodily injury” because Dr.
Russell stated that “there was a bone fracture; that that bone fracture was
consistent with the swollen nose injury she observed on [Complainant,]” and
that “[Complainant] told you that he had no prior broken nose[.]” Further, in
rebuttal argument, the prosecutor stated that the “bone fracture happened as
[Rodriguez] and [Petitioner] [were] hitting [Complainant] in the face.” Thus,
the State relied on the nasal bone fracture to establish substantial bodily
injury.
            Additionally, when discussing the Class B mitigating defense
specifically, the prosecutor also asserted in closing argument that “the
substantial bodily injury we talked about is the Assault 2, the bone
fracture.” (Emphasis added.) Thus, the State took the position that the same
conduct both negatived the Class B mitigating defense and established the
commission of the offense of assault in the second degree.

      15
            In contrast, the prosecution asserted that it could be determined
that the fracture was sustained during the Kidnapping because Complainant
testified that he had not previously broken his nose.

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severity of the actual harm involved,” and to “encourage the

actor to proceed less dangerously once the criminal course of

conduct has begun.”        Commentary to HRS §§ 707-720 to 722

(emphases added).        Thus, the purpose of allowing a mitigating

defense would be undermined by only requiring the State to

demonstrate that the victim was suffering from a substantial

bodily injury at the time of his release.            Instead, evidence must

have been adduced that demonstrates that the substantial bodily

injury was caused during the course of the Kidnapping by

Petitioner, or by the co-defendant as Petitioner’s accomplice, or

both.16

                                      VIII.

                Finally, Petitioner’s assertion that he is entitled to

the benefit of the Class B mitigating defense is incorrect.

Here, Petitioner was charged with Kidnapping based on the

unlawful restraint of Complainant with the intent to terrorize

him.        The Class B mitigating defense is a non-affirmative

defense17 that applies to all versions of Kidnapping, see HRS §


       16
            To reiterate, the State asserted that the substantial bodily
injury suffered by Complainant was a broken nose. Complainant testified that
he was punched in the nose while there was a bag over his face, and that
Petitioner and Rodriguez were the only individuals present. Thus, the jury
could infer from the evidence that both Petitioner and Rodriguez struck
Complainant and that either of them or both could have caused Complainant’s
injuries. The court’s instructions stated that “[a] defendant charged with
committing an offense may be guilty because he is an accomplice of another
person in the commission of the offense.” Hence, the jury also could have
concluded that either Petitioner or Rodriguez caused the substantial bodily
injury and that the other defendant was liable as an accomplice.

      17
            “Affirmative defenses are those so designated by the [Hawai#i
Penal] Code or another statute; or defenses which the Hawai#i Penal Code or
another statute plainly require the defendant to prove by a preponderance of
the evidence.” State v. Gabrillo, 10 Haw. App. 448, 455, 877 P.2d 891, 894

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707-720(1), and reduces the severity of every Kidnapping version

from a Class A felony to a Class B felony.          HRS § 707-720(3).

            As a result, “where the criminal defense is not an

affirmative defense, the ‘defendant need only raise a reasonable

doubt as to his guilt.’”       Gabrillo, 10 Haw. App. at 455, 877 P.2d

at 894 (quoting Commentary on HRS § 701-115).           The burden then

falls on the prosecution to “‘prove beyond a reasonable doubt

facts negativing the defense.’” Id. (quoting Commentary on HRS §

701-115).    Consequently, “‘[t]he prosecution does this when the

jury believes its case[.]’”       Id. (quoting Commentary on HRS §

701-115).    Therefore, to convict Petitioner of Kidnapping as a

Class A felony, the State was required to disprove the Class B

mitigating defense beyond a reasonable doubt.

            Here, the jury’s response to the special

interrogatories indicated that the jury found that the State

disproved at least two of the three elements of the Class B

mitigating defense beyond a reasonable doubt, i.e., the

requirement that Petitioner released Complainant and the

requirement that Complainant was released in a safe place.

Petitioner challenges only the answer to the second special

interrogatory, that Complainant was alive and suffering from

serious or substantial bodily injury as inconsistent with the



(1994) (quoting HRS § 701-115(3)) (internal brackets and punctuation omitted).
Here, the Class B mitigating defense is not designated as an affirmative
defense and there is no statute that requires the defendant to prove the Class
B mitigating defense by a preponderance of the evidence. Hence, the Class B
mitigating defense is not an affirmative defense. Id.

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jury’s verdict convicting Petitioner of assault in the third

degree.

            However, the State would need only to disprove one of

the elements of the Class B mitigating defense beyond a

reasonable doubt to establish that the defense did not apply.

State v. Kikuta, 125 Hawai#i 78, 253 P.2d 639 (2011), is

instructive in this regard.         In Kikuta, this court discussed the

trial court’s refusal to give the parental discipline defense.18

125 Hawai#i at 84, 253 P.3d at 645.          This court explained that

“[i]n order to invoke the parental discipline defense a defendant

      18
            HRS § 703-309 (1993) provides in relevant part as follows:

            § 703-309 Use of force by persons with special
            responsibility for care, discipline, or safety of
            others.

            The use of force upon or toward the person of another is
            justifiable under the following circumstances:

            (1) The actor is the parent, guardian, or other person
            similarly responsible for the general care and supervision
            of a minor, or a person acting at the request of the parent,
            guardian, or other responsible person, and:

                    (a) The force is employed with due regard for
                    the age and size of the minor and is reasonably
                    related to the purpose of safeguarding or
                    promoting the welfare of the minor, including
                    the prevention or punishment of the minor's
                    misconduct; provided that there shall be a
                    rebuttable presumption that the following types
                    of force are not justifiable for purposes of
                    this subsection: throwing, kicking, burning,
                    biting, cutting, striking with a closed fist,
                    shaking a minor under three years of age,
                    interfering with breathing, or threatening with
                    a deadly weapon; and

                  (b) The force used does not intentionally,
                  knowingly, recklessly, or negligently create a
                  risk of causing substantial bodily injury,
                  disfigurement, extreme pain or mental distress,
                  or neurological damage.
            . . . .

(Emphases added.)

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is required to make a showing that the record contained some

evidence supporting [four different] elements.”19           Id.; accord

State v. Crouser, 81 Hawai#i 5, 10-11, 911 P.2d 725, 730-31

(1996).    Additionally, Kikuta explained that “because the

requirements of HRS § 703–309 are set out in the conjunctive,

rather than the disjunctive, a defendant need only fail to

fulfill any one element in order to fail to sustain the defense.”

Id. at 87, 253 P.3d at 648; accord Crouser, 81 Hawai#i at 11, 911

P.2d at 731.    Because some evidence existed in the record as to

all four elements, this court held that the trial court erred in

not instructing the jury as to the defense.           Kikuta, 125 Hawai#i

at 94, 253 P.3d at 655.

            The requirements of the Class B mitigating defense in

HRS § 707-720(3) are clearly set forth in the conjunctive, i.e.,

a defendant must voluntarily release the victim, the victim must

be alive and not suffer from serious or substantial bodily

injury, and the victim must be released in a safe place.                Hence,

“a defendant need only fail to fulfill any one element in order


      19
            The four elements of the parental discipline defense are:

            (1) [the defendant] was a parent, guardian, or other person
            as described in HRS § 703–309(1); (2) [the defendant] used
            force against a minor for whose care and supervision he [or
            she] was responsible; (3) his [or her] use of force was with
            due regard to the age and size of the recipient and
            reasonably related to the purpose of safeguarding or
            promoting the welfare of the minor, including the prevention
            or punishment of misconduct; and (4) the force used was not
            designed to cause, or known to create a risk of causing,
            substantial bodily injury, disfigurement, extreme pain or
            mental distress, or neurological damage.

Kikuta, 125 Hawai#i at 84, 253 P.3d at 645 (brackets in original) (quoting
State v. Miller, 105 Hawai#i 394, 401, 98 P.3d 265, 272 (App. 2004).

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to fail to sustain the defense.”         Kikuta, 125 Hawai#i at 87, 253

P.3d at 648.   Thus, the State was only required to disprove one

of the elements of the defense beyond a reasonable doubt to

establish that the defendant “failed to fulfill” one element and

therefore was not entitled to the defense.

          The jury’s responses to the two special interrogatories

indicated that the State proved beyond a reasonable doubt that

Petitioner did not release Complainant voluntarily, and that

Petitioner did not release Complainant in a safe place.            Hence,

the responses to those special interrogatories established that

the State “proved beyond a reasonable doubt facts negativing” the

first and third elements of the Class B mitigating defense.                See

Gabrillo, 10 Haw. App. at 455, 877 P.2d at 894.           Thus, Petitioner

was not entitled to the Class B mitigating defense here.

                                    IX.

          Based on the foregoing, the ICA’s August 21, 2013

judgment on appeal and the court’s March 19, 2012 Judgment of

Conviction and Sentence of Petitioner are affirmed, but for the

reasons stated herein.

Shawn A. Luiz,                       /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
Sonja P. McCullen,
for respondent                       /s/ Simeon R. Acoba, Jr.

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




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