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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                07-SEP-2018
                                                                08:22 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                 ---o0o---


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

                                     vs.

                       PHILLIP DEJESUS DELEON,
                   Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 09-1-1237)

                            SEPTEMBER 7, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          Defendant Phillip DeLeon was charged with, inter alia,

Murder in the Second Degree of Shawn Powell.           The charges stemmed

from a late-night confrontation between DeLeon and a group of men

that included Powell and Jermaine Beaudoin, which resulted in

DeLeon fatally shooting Powell in the chest.           In support of
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DeLeon’s claim of self-defense, DeLeon sought to introduce

evidence of Powell’s and Beaudoin’s prior violent acts under

Hawaii Rules of Evidence (HRE) Rules 404 and 405, to show their

violent or aggressive character.          Hawaii law permits defendants

to introduce evidence of victims’ prior violent acts for that

purpose, but only if there is a factual dispute as to whether the

defendant or the victim was the first aggressor.            See State v.
Lui, 61 Haw. 328, 329, 603 P.2d 151, 154 (1979).            The circuit

court denied DeLeon’s request after finding that there was no

factual dispute that DeLeon was the first aggressor, and DeLeon

was convicted of Powell’s murder.          The Intermediate Court of

Appeals (ICA) affirmed, and DeLeon now seeks certiorari review.

            As an initial matter, we hold that a victim’s violent

or aggressive character is an “essential element” of a self-

defense claim for purposes of determining admissibility under HRE

Rule 405.    Accordingly, specific instances of conduct, such as a

victim’s prior violent acts, can be used as a method of proving

character in such circumstances under HRE Rule 405.

            We further hold that the circuit court erred in finding

no factual dispute as to who was the first aggressor.              We also

conclude that the error was not harmless.           Accordingly, we vacate

the ICA’s December 13, 2017 Judgment on Appeal and the circuit

court’s August 5, 2015 Judgment, and remand the case for further

proceedings.




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                                 I.   Background

A.     Prior Proceedings

             On August 5, 2009, the State indicted DeLeon for eight

charges, including: Attempted Murder in the First Degree (Count

I), in violation of Hawaii Revised Statutes (HRS) §§ 705-500,

707-701(1)(a), and 706-656; Murder in the Second Degree (Count

II), in violation of HRS §§ 707-701.5 and 706-656; Attempted
Murder in the Second Degree (Count III), in violation of HRS

§§ 705-500, 707-701.5, and 706-656; Carrying or Use of Firearm in

the Commission of a Separate Felony (Counts IV and V), in

violation of HRS §§ 134-21, 705-500, 707-701.5, and 706-656;

Place to Keep Pistol or Revolver (Count VI), in violation of HRS

§ 134-25; Reckless Endangering in the First Degree (Count VII),

in violation of HRS § 707-713; and Ownership or Possession

Prohibited of Any Firearm or Ammunition By a Person Indicted for

Certain Crimes (Count VIII), in violation of HRS §§ 134-7(b) and

(h).    The Grand Jury identified the following people as victims:

Shawn Powell in Counts I and II, Justin Gamboa in Counts I and

III, Jermaine Beaudoin in Count VII, and Lane Akiona in Count

VII.

             On October 1, 2010, a jury found DeLeon not guilty of

Count I, guilty of Count III’s lesser-included offense of

Reckless Endangering in the First Degree, and guilty as charged

of all other counts.        On appeal, the ICA vacated the Count V

conviction and affirmed the remaining convictions.                On certiorari


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review, this court vacated the circuit court’s judgment of

conviction and sentence on Counts II and IV only,1 and remanded

the case to the circuit court for further proceedings on those

counts.   State v. DeLeon, 131 Hawaii 463, 486, 489, 319 P.3d

382, 405, 408 (2014). Accordingly, Counts II and IV are the only

charges at issue in this appeal.2

B.    Instant Circuit Court Proceedings
            Prior to his re-trial, DeLeon filed an “Amended Notice

of Intent to Rely on Hawaii Rules of Evidence, Rule 404(b)

Evidence,” which sought to introduce evidence of Powell’s and

Beaudoin’s prior bad acts to support DeLeon’s position that

Powell and Beaudoin were the first aggressors.             DeLeon

specifically sought to introduce evidence that Powell had struck

prosecution witness Joseph Chang “while Chang was attempting to

physically separate [Powell] and a Reynold Borges” in 2007, and

also that Powell was convicted of two counts of Assault in the

Third Degree on June 13, 2000.         The motion also sought to

introduce Powell's January 31, 1994 Disorderly Conduct and

November 15, 1995 Criminal Property Damage convictions.               DeLeon

sought to introduce evidence that Beaudoin was convicted of

Assault in the Third Degree on October 29, 1998, Assault in the

Second Degree on August 8, 2000, and was arrested for two counts

      1
            Thus, DeLeon was found guilty, inter alia, of Reckless Endangering
in the First Degree (Count VII) of Beaudoin and/or Akiona.
      2
            Count II is Murder in the Second Degree of Powell. Count IV is
the accompanying Carrying or Use of Firearm in the Commission of a Separate
Felony.

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of Assault in the Third Degree on January 12, 2003.

              Trial commenced on April 7, 2015.3

       1.     Essential Testimony from the State’s Case-in-Chief

              a.    Beaudoin’s Testimony

              Beaudoin testified that on July 31, 2009, after a night

of drinking at various bars, he, Powell, and Justin Gamboa

arrived at Bar Seven at around 2:00 a.m.             Later in the night at
Bar Seven, Beaudoin saw Powell and DeLeon “having a

confrontation.”       Beaudoin described Powell and DeLeon as “holding

each other behind the head, and with their heads stuck to each

other, arguing.”       Beaudoin testified that he then walked over to

Powell and DeLeon to stop them, saying “stop it, relax, cool

down.”      Beaudoin testified that DeLeon swore at him, at which

point Beaudoin slapped DeLeon.           Beaudoin further testified that

the bouncers came in at that point and escorted DeLeon out of the

bar.

              Beaudoin testified that he, Powell, and Gamboa stayed

at Bar Seven until around 3:30 a.m., at which point they went to

another bar called Seoul Karaoke, which is adjacent to a

restaurant called Sorabol.          They entered Seoul Karaoke but were

told that it was closing, so they left.             As Beaudoin, Powell, and

Gamboa were walking back to their vehicle in the parking lot,

they heard someone yelling at them.            When they started

approaching that person, they recognized him, later identified as


       3
              The Honorable Colette Y. Garibaldi presided.

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DeLeon, as the person from Bar Seven with whom Powell and

Beaudoin had a confrontation.           According to Beaudoin, he, Powell,

and Gamboa told DeLeon, “[n]o, everything is cool.”                As the three

continued to approach DeLeon, DeLeon opened the trunk of his

vehicle, pulled out a gun, and immediately started shooting at

them.     Beaudoin testified that one of the shots hit Powell in the

chest, causing Powell to fall to the ground beside Beaudoin.
Beaudoin then “went on the ground and tried to get away.                 And

that’s when [DeLeon] started shooting towards [Beaudoin and

Gamboa].”      DeLeon then drove away in his vehicle.

             On cross-examination, Beaudoin testified that in two

separate interviews with a detective on July 31, 2009, and at a

prior proceeding on August 5, 2009, Beaudoin did not mention that

DeLeon was yelling at him, Powell, and Gamboa before they

approached DeLeon in the Sorabol parking lot.

             b.     Chang’s Testimony

             Joseph Chang testified that he was with a group of

friends that included Powell and Beaudoin at Bar Seven, but was

not with them at the time of the shooting at the Sorabol parking

lot.    On cross-examination, Chang testified that Beaudoin came up

to him at Bar Seven and told him that he wanted to hit DeLeon.

Chang testified that shortly thereafter he heard a loud slap, and

when he turned, he saw DeLeon’s sunglasses “flying off.”                 Chang

also testified that on a separate occasion in 2007, he tried to

break up an altercation between Powell and another individual,


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which resulted in Powell striking Chang in the face.4

            c.    Akiona’s Testimony

            Lane Akiona testified that he arrived with Joe Chang at

Bar Seven at around 2:00 a.m.         Akiona joined Powell, Beaudoin,

and Gamboa at Seoul Karaoke after leaving Bar Seven.              Akiona

testified that they were inside Seoul Karaoke for less than ten

minutes, and once they left and were in the parking lot, he heard
someone yelling.     Akiona testified that he saw DeLeon pull out a

gun, and when he “felt the pop” of DeLeon’s gun discharging,

Akiona “crawled on the ground” and “tried to get out of the way.”

            d.    Gamboa’s Testimony

            Gamboa testified that after being told that Seoul

Karaoke was closing, he, Powell, Beaudoin, and Akiona were all

walking together in the parking lot towards their vehicle to

leave.   According to Gamboa, they heard somebody yelling, “‘[y]ou

guys wanna mess with me?’ or ‘[y]ou guys wanna hit me?’”               DeLeon

then fired three shots into the ground, and seconds later Gamboa

saw Powell approaching DeLeon with “both hands up out to the

side, slightly above shoulder height.”           Gamboa testified that

DeLeon shot Powell immediately after the first three shots were

fired when Powell had his hands up.

            A surveillance video of the Sorabol parking lot at the


      4
            Immediately prior to Chang’s cross-examination, the attorneys
approached the bench and discussed having the defense attorney elicit this
testimony pursuant to the HRE Rule 404(b) notice it provided on March 24,
2015. The prosecuting attorney did not object to this testimony coming in.
The circuit court made no ruling at that time, however, regarding the issue of
first aggressor.

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time of the shooting was played for the jury at trial during

Gamboa’s direct examination.

          On cross-examination, Gamboa testified that in an

interview with a detective on July 31, 2009, he did not mention

that DeLeon was yelling at him, Powell, and Beaudoin before they

approached DeLeon in the Sorabol parking lot.

          e.     Dr. Goodhue’s Testimony
          Forensic pathologist Dr. William Goodhue testified that

he performed an autopsy on Powell, and that Powell sustained a

single fatal gunshot wound to his heart, causing his death.                  Dr.

Goodhue also testified that Powell had 0.171 grams per deciliter

of alcohol in his blood, and that what appeared to be gunshot

residue on Powell’s shirt was consistent with being shot from 6

to 8 inches away.

     2.   Essential Testimony from Defense’s Case-in-Chief

          DeLeon testified that on the evening of July 30, 2009,

he went “club hopping” and at around 2:30 to 3:00 a.m., he was at

a bar called Bar Seven.      At Bar Seven, he saw an acquaintance,

Chang, who introduced him to Powell.         As DeLeon and Powell shook

hands, DeLeon heard Powell say something that included the word

“Mexican.”     DeLeon testified that he leaned forward to understand

what Powell was saying, heard Powell say “fucking Mexican[,]” and

was grabbed from behind the neck by Powell and put in a

chokehold.     As DeLeon was struggling to break away from Powell’s

grip, DeLeon was hit on the side of his head by Beaudoin, causing


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the sunglasses he was wearing to fall to the floor.             DeLeon

testified that Chang then intervened, and told DeLeon to leave

“before something worse happens to [DeLeon] because they have all

their friends here.”

           DeLeon testified that he left in his vehicle and was

heading home, but decided to go to another bar called Ocean’s to

see if his friends were there.        Once at Ocean’s, he saw “[i]t was
already closing down[,]” because the parking lot was empty, and

decided to go to a restaurant called Sorabol “to get something to

eat.”   DeLeon parked in the Sorabol parking lot, then exited and

locked his vehicle.     As he started walking towards Sorabol, he

heard someone behind him say, “[t]here’s that fucking Mexican.”

DeLeon turned to see a group of four to five men walking towards

him, and recognized that they were the same men from the Bar

Seven incident earlier that night.         DeLeon considered running to

Sorabol, but didn’t think he could make it and thus headed back

to his vehicle.    When the group of men were five to ten feet away

from DeLeon, DeLeon “decided to pop [his] trunk with the fob on

[his] key chain” and “pulled the 9-millimeter out.”

           DeLeon testified that he “just wanted to scare them”

and “to protect [him]self.”       After giving a verbal warning to

stay back and firing a warning shot in the air, two men ran away

but the other three were still proceeding in DeLeon’s direction.

DeLeon then told them again to stay back and fired three shots




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into the ground, but the men still did not stop approaching.5

DeLeon had his gun pointed at Powell, who was closest to him and

about an “arm’s length” away.         According to DeLeon, Powell then

said, with his hands up, “[w]hat, you think one gun is going to

stop us all?”     DeLeon explained that he then shot Powell, and

that he only intended to hit him in the shoulder.              DeLeon

testified that he shot Powell because he was scared and wanted to
protect himself, and also that he did not intend to kill Powell.

DeLeon admitted on cross-examination that Powell’s hands were

raised and he was unarmed when DeLeon shot him.             DeLeon testified

that Powell was “at arm’s length” from DeLeon when he shot him,

and Powell did not try to take the gun away from DeLeon, although

Powell was close enough to do so.

      3.    DeLeon’s Request to Introduce Powell’s and Beaudoin’s
            Prior Violent Acts

            After the defense presented its case, the circuit court

conducted a hearing outside of the jury’s presence on DeLeon’s

“Amended Notice of Intent to Rely on Hawaii Rules of Evidence,

Rule 404(b) Evidence.”       The defense sought to introduce evidence

of Powell’s and Beaudoin’s prior violent acts in order to support

the defense’s position that Powell and Beaudoin, and not DeLeon,

were the first aggressors.

            After hearing arguments from the parties, the circuit




      5
            On cross-examination, DeLeon testified that everyone except Powell
ran away after the warning shots were fired.

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court denied DeLeon’s request.6         The circuit court acknowledged

that it had reviewed State v. Lui, 61 Haw. 328, 603 P.2d 151

(1979), State v. Basque, 66 Haw. 510, 666 P.2d 599 (1983), and

State v. Maddox, 116 Hawaii 445, 173 P.3d 592 (App. 2007).               As

to Beaudoin, the circuit court explained that:

            given the state of the evidence, with respect to the
            404 evidence concerning prior bad acts to show the
            violent character as to Mr. Beaudoin, his conduct,
            which is in question, occurred at Bar 7. It’s remote
            in time, remote in place to the incident that actually
            involved Mr. Powell’s death.

            As to Powell, the circuit court explained that:

            [t]his is a -- on the basis of there being a first-
            aggressor issue, the evidence in the parking lot and
            this occurred an hour later, so it’s a different
            location, there is a break in time, the evidence that
            has been produced fails to support a factual dispute
            as to who was the aggressor.

            The evidence is that Mr. Powell was the individual
            standing alone, palms-open gesture, no movement.
            This, and the testimony of the defendant that Mr.
            Powell made no movement other than to have his hand
            open and he was walking, the record does not appear to
            support that there is a factual dispute as to who was
            the aggressor.

            And the facts in Mr. DeLeon’s matter, as [the State]
            indicated, are very similar to those that are cited in
            State v. [Lui], 61 Hawaii 328.

(Emphasis added).

      4.    Jury Instructions

            The circuit court instructed the jury on Murder in the

Second Degree and the lesser-included offenses of: Manslaughter;


       6
            As previously noted, the circuit court allowed evidence of
Powell’s 2007 assault on Chang during defense counsel’s cross-examination of
Chang.

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Assault in the First Degree; and Assault in the Second Degree

based on intentionally, knowingly, or recklessly causing

substantial bodily injury.       The circuit court then instructed the

jury regarding the offense of Carrying or Use of a Firearm in the

Commission of a Separate Felony.          The circuit court also

instructed the jury on self-defense.          Part of the court’s self-

defense instruction provided that “[t]he use of deadly force is
not justifiable if the defendant, with the intent of causing

death or serious bodily injury, provoked the use of force against

himself in the same encounter.”

     5.   Closing Arguments

          The State argued that this case was about DeLeon’s

revenge after being humiliated at Bar Seven.           The State contended

that DeLeon went to Sorabol to wait for Powell and his friends,

threatened them by firing his gun, and intended to kill Powell

when he shot him in the heart at close range.            The State argued

that DeLeon did not act in self-defense, asserting that

“[s]hooting someone in the heart, an unarmed man who is

approaching you with his arms up, that is not going to be

justified . . . .”     The State argued that DeLeon could have

retreated to safety but chose not to, and emphasized that “[t]his

was one on one, against an unarmed man, with his hands up,

walking towards [DeLeon].”

          Defense counsel focused on the credibility of Beaudoin,

Akiona, Gamboa, and Chang by noting their drunkenness that night


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and the inconsistencies between their testimonies and their

statements given to police.       Defense counsel argued that the

inconsistencies reflected bias, motive, and interest.              Defense

counsel then argued that the Sorabol surveillance video showed

that Powell was not alone, but was with others around him, and

that Powell was moving toward DeLeon.          Counsel stated “there’s

only one guy moving forward with a purpose, accompanied by his
friends.”

            Defense counsel also argued that DeLeon’s use of force

was justified in self-defense because he “reasonably believed

that the use of protective deadly force was immediately

necessary.”     Counsel argued he was “in fear of getting serious

bodily injury[,]” and only shot Powell at the last moment after

repeated warning shots did not stop the group from continuing to

approach him.    Counsel repeated the court’s jury instruction

that:   “[t]he use of deadly force is not justifiable if the

defendant, with the intent of causing death or serious bodily

injury, provoked the use of force.”         Defense counsel then argued

that DeLeon did not provoke Powell and his friends, and was

justified in using deadly force in self-defense.

     6.     Verdict, Judgment, and Sentence

            The jury found DeLeon guilty of Manslaughter and of

Carrying or Use of a Firearm in the Commission of a Separate

Felony.   The circuit court sentenced DeLeon to a twenty-year term

of imprisonment for each count, to run concurrently, with a


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mandatory minimum term of fifteen years for the latter count.

DeLeon timely filed a notice of appeal.

C.   ICA Proceedings

           In its November 13, 2017 Summary Disposition Order, the

ICA affirmed the judgment of the circuit court.             The ICA

concluded, inter alia, that the circuit court did not abuse its

discretion in excluding evidence of Powell’s and Beaudoin’s prior
violent acts under HRE Rule 404.

                         III.    Standard of Review

           The trial court’s determination of whether there is a

factual dispute as to who was the first aggressor for purposes of

HRE Rules 404 and 405 is reviewed de novo.            See Maddox, 116

Hawaii at 460, 173 P.3d at 607.         Where such a factual dispute

exists, the extent to which evidence of the victim’s prior

violent acts may be admitted is reviewed under an abuse of

discretion standard.      See Basque, 66 Haw. at 515, 666 P.2d at

603; Maddox, 116 Hawaii at 460, 173 P.3d at 607.

                                IV.   Discussion

           In his application for writ of certiorari, DeLeon

presents the following question:

           Whether the ICA gravely erred in concluding that the
           trial court did not abuse its discretion in excluding
           Powell’s and Beaudoin’s criminal histories and prior
           acts of violence when the record clearly established
           there was a dispute as to who was the initial
           aggressor and when the trial court instructed the jury
           that DeLeon would be precluded from using deadly force
           if he was the initial aggressor.




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A.     Introducing Evidence of a Victim’s Aggressive or Violent
       Character Under HRE Rules 404 and 405

             In Lui, we explained that under the common law, “a

defendant who claims self-defense to a charge of homicide is

permitted to introduce evidence of the deceased’s violent or

aggressive character . . . to show that the decedent was the

aggressor.”      Lui, 61 Haw. at 329, 603 P.2d at 154.            However, we

held that evidence of the decedent’s character is not admissible
when there is no factual dispute as to who was the first

aggressor.      See id. at 330-31, 604 P.2d at 154.

             Lui was later codified into HRE Rule 404(a)(2).               See

HRE Rule 404 cmt. (1994); Basque, 66 Haw. at 513, 666 P.2d at

602.    HRE Rule 404 provides, in relevant part:

             Character evidence not admissible to prove conduct;
             exceptions; other crimes.

             (a) Character evidence generally. Evidence of a
             person’s character or a trait of a person’s character
             is not admissible for the purpose of proving action in
             conformity therewith on a particular occasion, except:

             . . . .

                    (2) Character of victim. Evidence of a
                    pertinent trait of character of the victim of
                    the crime offered by an accused, or by the
                    prosecution to rebut the same, or evidence of a
                    character trait of peacefulness of the victim
                    offered by the prosecution in a homicide case to
                    rebut evidence that the victim was the first
                    aggressor[.]

             . . . .

             (b) Other crimes, wrongs, or acts. Evidence of other
             crimes, wrongs, or acts is not admissible to prove the
             character of a person in order to show action in
             conformity therewith. It may, however, be admissible


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            where such evidence is probative of another fact that
            is of consequence to the determination of the action,
            such as proof of motive, opportunity, intent,
            preparation, plan, knowledge, identity, modus
            operandi, or absence of mistake or accident. In
            criminal cases, the proponent of evidence to be
            offered under this subsection shall provide reasonable
            notice in advance of trial, or during trial if the
            court excuses pretrial notice on good cause shown, of
            the date, location, and general nature of any such
            evidence it intends to introduce at trial.

(Emphasis added).7
            If character evidence is admissible under HRE Rule

404(a)(2), the second step is to determine the methods by which

the pertinent character trait of the victim may be proved,

pursuant to HRE Rule 405.        See HRE Rule 405 cmt. (1994) (“Before

[Rule 405] may be invoked, the question of substantive

admissibility of character evidence must be decided according to

Rule 404.”).    HRE Rule 405 provides, in relevant part:

            Methods of proving character.

            (a) Reputation or opinion. In all cases in which
            evidence of character or a trait of character of a
            person is admissible, proof may be made by testimony
            as to reputation or by testimony in the form of an
            opinion. On cross-examination, inquiry is allowable
            into relevant specific instances of conduct.

            (b) Specific instances of conduct. In cases in which
            character or a trait of character of a person is an
            essential element of a charge, claim, or defense,
            proof may also be made of specific instances of the
            person’s conduct.



      7
            The commentary to HRE Rule 404(a)(2) notes that this subsection is
mainly applicable to homicide and assault cases, and cites Lui as consistent
with HRE Rule 404(a)(2). See HRE Rule 404 cmt. (1994); Basque, 66 Haw. at
513, 666 P.2d at 602 (noting that the Lui rule regarding the use of a victim’s
prior violent acts to establish who was the first aggressor was later codified
as HRE Rule 404(a)(2)).

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(Emphasis added).

             The Massachusetts Supreme Judicial Court summarized

federal and state courts’ interpretations of Rules 404 and 405 on

the issue:

             Rules 404 and 405 of the Federal Rules of Evidence and
             similar State rules permit the defendant to introduce
             reputation and opinion evidence, but not specific acts
             of violence, to prove the victim’s violent character.
             Despite this dominant interpretation of the Federal
             Rules of Evidence, some State courts have held that
             the victim’s character is an “essential element” of a
             defendant’s self-defense claim, allowing the use of
             specific acts evidence under the State equivalent of
             Fed. R. Evid. 405(b). See, e.g., State v. Dunson, 433
             N.W.2d 676, 680–681 (Iowa 1988); State v. Baca, 114
             N.M. 668, 671–673, 845 P.2d 762 (1992). Other States
             with versions of the Federal Rules of Evidence have
             crafted a compromise rule allowing evidence of the
             victim’s specific acts only in the form of
             convictions. Jurisdictions that have not adopted the
             Federal Rules of Evidence are split on the issue.

Commonwealth v. Adjutant, 443 Mass. 649, 661 n. 15, 824 N.E.2d 1,

11 n. 15 (2005) (some citations omitted).

             In Basque, we addressed the State’s contention that the

rule in Lui, later codified as HRE Rule 404(a)(2), “allows only

the use of character evidence –- to be proved by reputation or

opinion -- and not evidence of ‘other crimes, wrongs, or acts,’

which is covered by Rule 404(b).”            66 Haw. at 513-14, 666 P.2d at

602.    We stated:

             In Lui, however, we treated general character evidence
             and specific prior acts (including those reflected in
             the victim’s criminal record) the same for purposes of
             corroborating a defendant’s self-defense claim as to
             who was the aggressor. A growing number of other
             courts are in accord. As Dean Wigmore has stated:
             “[T]here is no substantial reason against evidencing
             the character (of a deceased victim) by particular


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          instances of violent or quarrelsome conduct. Such
          instances may be very significant; their number can be
          controlled by the trial court’s discretion; and the
          prohibitory considerations applicable to an accused’s
          character have here little or no force.” 1 Wigmore on
          Evidence § 198 (3d ed. 1940) (emphasis in original).

Id. at 514, 666 P.2d at 602 (some citations omitted).

          While this court did not explicitly hold that the

aggressive or violent character trait of a victim is an essential

element of a claim of self-defense, this court rejected the
argument that the only admissible evidence of a victim’s

character was through reputation and opinion evidence.              See id.

(“we treated general character evidence and specific prior acts

(including those reflected in the victim’s criminal record) the

same for purposes of corroborating a defendant’s self-defense

claim as to who was the aggressor.”).          Thus, we reiterated the

holding in Lui that, once a factual question was raised as to who

was the first aggressor, evidence of a victim’s character could

be presented through specific instances of conduct, such as the

victim’s prior violent acts.       See id.

          The methods for proving character are outlined in HRE

Rule 405, which only allows for the use of specific instances of

conduct to prove character when character is an essential element

of, inter alia, a defense to the crime.          It follows then, that if

this court allows specific instances of a victim’s conduct when a

self-defense claim is raised and there is an issue as to who is

the first aggressor, the victim’s character is an essential



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element of a claim of self-defense.8

            Thus, we now explicitly hold that, when there is a

factual dispute as to who was the first aggressor, a victim’s

pertinent character trait is an “essential element” to a claim of

self-defense, and therefore, evidence of specific instances of

conduct concerning that character trait, such as the victim’s

prior violent acts, may be admissible under HRE Rule 405(b).9
B.    Whether There Was a Factual Dispute as to Who Was the First
      Aggressor

            DeLeon argues that the record shows that there was a

factual dispute as to whether DeLeon, Powell, or Beaudoin was the

first aggressor.10     Our prior case law provides guidance on what


      8
            Some state courts have similarly held that a pertinent character
trait of a victim is an “essential element,” under Rule 405, of a claim of
self-defense. See, eg., State v. Dunson, 433 N.W.2d 676, 680–81 (Iowa 1988);
Gottschalk v. State, 881 P.2d 1139, 1143 (Alaska Ct. App. 1994) (citing
Loesche v. State, 620 P.2d 646 (Alaska 1980); Byrd v. State, 626 P.2d 1057
(Alaska 1980); Keith v. State, 612 P.2d 977 (Alaska 1980).
      9
             The admission of evidence of specific instances of conduct would
still need to comply with HRE Rules 401 and 403. See State v. Behrendt, 124
Hawaii 90, 102, 237 P.3d 1156, 1168 (2010) (discussing HRE Rule 404(b) and
stating that “‘[p]rior bad act’ evidence . . . is admissible when it is 1)
relevant and 2) more probative than prejudicial.”).
      10
            As an initial matter, we hold that Beaudoin was a victim for
purposes of HRE Rule 404(a)(2). DeLeon sought to introduce evidence of
Beaudoin’s prior violent acts to support his position that Powell was the
first aggressor and not DeLeon. HRE Rule 404(a)(2) allows “evidence of a
pertinent trait of character of the victim” to be introduced as an exception
to the general rule against admitting character evidence.

            When DeLeon was indicted, both Powell and Beaudoin were identified
as victims in the indictment. In the 2010 trial, a jury found DeLeon guilty
as charged on several charges that characterized either Powell or Beaudoin as
a victim. This court vacated the circuit court’s judgment of conviction and
sentence on Counts II and IV, and remanded the case to the circuit court for
trial on those counts. State v. DeLeon, 131 Hawaii 463, 319 P.3d 382 (2014).
Accordingly, DeLeon’s conviction for Count VII (Reckless Endangering in the
First Degree of Beaudoin and/or Akiona) was affirmed, and DeLeon’s convictions
                                                                (continued...)

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evidence raises a factual dispute as to who was the first

aggressor.

              In Lui, we determined that the record did not support

finding a factual dispute as to who was the first aggressor.                    61

Haw. at 330, 603 P.2d at 154.           Lui was convicted of manslaughter

for shooting the decedent.          Id. at 328, 603 P.2d at 153.         The

evidence showed that hours before the shooting, Lui and the
decedent got into a fist fight, at the end of which the decedent

threatened to shoot Lui.         Id. at 328-29, 603 P.2d at 153.           Lui

then went home to get a handgun, returned to the scene of the

fight, and saw the decedent approaching him.              Id. at 329, P.2d at

153.    Lui walked toward the decedent and shot him from about 10

feet away because Lui thought the decedent was reaching for a

gun.    Id.    The decedent was unarmed.        Id.    The trial court did

not allow evidence of the decedent’s prior bad acts to show that

the decedent was the aggressor at the shooting.               Id.   On appeal,

this court held that the trial court “properly excluded the

proffered evidence to show by circumstantial proof that the


      10
         (...continued)
for Counts II (Murder in the Second Degree of Powell) and Count IV
(accompanying Carrying or Use of Firearm in the Commission of a Separate
Felony) were vacated and remanded. Thus, in the 2015 trial at issue in this
appeal, the only charges remaining concerned Powell.

            Beaudoin was a victim in this case. DeLeon was convicted of
Reckless Endangerment in the First Degree of Beaudoin. But for the fact that
two trials were conducted because of errors in DeLeon’s first trial, charges
listing Beaudoin as a victim would have also been presented to the jury in the
2015 trial. Accordingly, Beaudoin should have been considered a victim at the
2015 trial for the purposes of HRE Rule 404(a)(2) admission of character
evidence of a victim. We need not consider whether other circumstances would
allow the introduction of such evidence with regard to individuals who were
not the “victim” of the charged offense.

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deceased was the aggressor in the fatal incident.               The record

does not support a factual dispute as to who was the aggressor.”

Id. at 330, 603 P.2d at 154.

            In Basque, this court distinguished Lui and determined

that there was a factual dispute as to who was the first

aggressor.     66 Haw. at 512-13, 666 P.2d at 601-02.             The evidence

showed that: Basque drove to the home of his former girlfriend,
Delima, and called out to her while he was in his car with the

door open.     Id. at 511, 666 P.2d at 600.         Delima’s boyfriend,

Pagharion, pushed Delima aside, shook Basque’s car, and asked,

“[w]hy the hell you keep on bothering her?”             Id. at 511, 666 P.2d

at 601.    Basque testified that Pagharion was swearing and

threatening to kill him as he came over, and that they both

reached for the gun under Basque’s driver’s seat at the same

time, causing the gun to discharge twice during their struggle.

Id.   Delima and her brother both testified that Basque reached

under the seat, shot Pagharion in the arm, and that Basque and

Pagharion then struggled for the gun, which went off a second

time, fatally wounding Pagharion in the chest.              Id.    The trial

court granted the State’s motion to preclude Basque from

introducing Pagharion’s criminal record11 after balancing the




      11
            Pagharion’s record included arrests for attempted murder and five
counts of armed robbery, and his guilty plea to two of the robbery counts.
Basque, 66 Haw. at 511-12, 666 P.2d at 601.

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interests of the parties pursuant to HRE Rule 40312 and holding

that jurors might place too much emphasis on the criminal record.

Id. at 512, 666 P.2d at 601.

          This court distinguished Basque from Lui and determined

that:

          [T]he evidence presented in the instant case is
          unclear and conflicting as to who was the aggressor.
          The testimony of appellant, witnesses to the shooting,
          and even the State’s two experts, presents genuine
          disputes as to who attacked whom first, and how close
          and in what position the appellant and decedent were
          when the two shots were fired. Moreover,
          uncontroverted testimony was adduced that the deceased
          had drunk about eight beers that afternoon, and in
          approaching appellant, had pushed aside [his
          girlfriend] and shaken [appellant’s] car. Given such
          testimony, it is evident that a factual question
          existed as to who was the aggressor in this case.

Id. at 513, 666 P.2d at 601-02.

          This court concluded that the trial court “abused its

discretion when it flatly prohibited appellant from arguing to

the jury, or otherwise eliciting evidence of, the criminal

history of the deceased.      We cannot say beyond a reasonable doubt

that such an abuse did not contribute to the jury’s verdict.”

Id. at 515, 666 P.2d at 603.

          In State v. Maddox, 116 Hawaii 445, 460, 173 P.3d 592,

607 (App. 2007), the ICA held that the testimony of the defendant


     12
          HRE Rule 403 states:

          Although relevant, evidence may be excluded if its
          probative value is substantially outweighed by the
          danger of unfair prejudice, confusion of the issues,
          or misleading the jury, or by considerations of undue
          delay, waste of time, or needless presentation of
          cumulative evidence.

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can constitute evidence sufficient to support a finding that

there is a dispute as to who was the first aggressor.                 In that

case, the victim, Mota, was the new boyfriend of Maddox’s ex-

girlfriend, and Maddox had unexpectedly come to Mota’s home in

the late evening, which resulted in a confrontation between

Maddox and Mota.       Id. at 448, 173 P.3d at 595.          Mota testified

for the State that he asked Maddox to leave his home, to which
Maddox responded by making “threatening moves toward Mota” and

ultimately stabbing Mota in the chest.             Id. at 460, 173 P.3d at

607.    The circuit court did not allow Maddox to cross-examine

Mota about his past to show his character for violence.                 Id. at

449, 173 P.3d at 596.

             On appeal, Maddox argued that “Mota’s testimony raised

the factual issue as to whether Mota had been the first

aggressor[.]”       Id. at 460, 173 P.3d at 607.         The ICA rejected

that argument, and stated that “Mota’s testimony did not raise a

factual issue regarding who was the first aggressor but instead

plainly showed that Maddox was the first aggressor.”                Id.    The

ICA noted that Maddox’s subsequent testimony that Mota attacked

him without provocation was “ample evidence” to support Mota

being the first aggressor, however Maddox did not seek to recall

Mota after Maddox testified.          Id.    The ICA therefore concluded

that the circuit court did not abuse its discretion in excluding

evidence of Mota’s prior acts of violence because the requests to

introduce that evidence “were made before evidence to support a


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finding that Mota was the first aggressor had been introduced.”

Id.

            In the instant case, DeLeon testified that after he got

out of his vehicle upon arriving at the Sorabol parking lot, he

heard someone behind him say, “[t]here’s that fucking Mexican.”13

He turned to see Powell and three to four others14 approaching

him, and DeLeon recognized the men from the incident earlier in

      13
            To the extent that DeLeon argues that the incident at Bar Seven
establishes that Powell and Beaudoin were the first aggressors at the time of
the shooting at the Sorabol parking lot, that argument is without merit
because the events were sufficiently separated by time and distance.
            In State v. Adam, the ICA considered whether the defendant’s
actions of first aggression extended to a later confrontation that gave rise
to the charges brought against him. 97 Hawaii 413, 38 P.3d 581 (App. 2001).
In that case, Wentworth was picking opihi along the Milolii coastline when a
rock struck his back. Id. at 415, 38 P.3d at 583. He looked up the cliff
that fronted the coastline and saw Adam with a rock in his hand. Id.
Wentworth climbed the cliff and approached Adam’s house. Id. After “calling
[Adam] out[,]” Wentworth proceeded to “[s]wear, yell, and fly rocks at . . .
[Adam’s] truck.” Id. When a rock hit Adam’s truck, Adam ran out of his house
with a nine millimeter pistol, pointed it in Wentworth’s direction, and fired.
Id. Adam moved to introduce evidence of Wentworth’s prior convictions in
order to show evidence that he was the first aggressor. Id. at 416, 38 P.3d
at 584. The ICA concluded that “there was no factual issue as to who,
Wentworth or Adam, was the first aggressor. Wentworth admitted he was the
aggressor and Adam responded by firing his gun.” Id. at 418, 38 P.3d at 586.
Accordingly, the ICA affirmed the trial court’s denial of Adam’s motion to
introduce evidence of Wentworth’s prior convictions. Id. at 422, 38 P.3d at
590.
            The ICA rejected the argument that the first aggressor issue
extended from Adam’s initial rock-throwing from the cliff to the shooting
outside Adam’s house, concluding that Wentworth was the initial aggressor when
he threw rocks at Adam’s truck after he climbed up the cliff. Id. at 418, 38
P.3d at 586. The ICA did not, however, explain the basis on which it
concluded that there was no extension of the first aggressor issue.
            Here, there was a break in time between the two events of roughly
one hour, in which DeLeon was going to go home, went to Ocean’s, and then
ultimately went to Sorabol to get something to eat. There was a more
significant break in time here than in Adam, where the chain of events that
unfolded after the initial rock-throwing were all part of one course of
circumstance. The Bar Seven incident was therefore attenuated from the
shooting at Sorabol, and the fact that Powell and Beaudoin were aggressors at
Bar Seven does not extend to the incident in the Sorabol parking lot.
      14
            It is unclear from DeLeon’s testimony whether Beaudoin was one of
these people. Beaudoin, Akiona, and Gamboa testified that Beaudoin was
present.

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the evening when he was assaulted by Powell.              At this point,

DeLeon testified that Powell and the men with him were five to

ten feet away from DeLeon.          DeLeon thought about running to

Sorabol, but he thought the group would catch him and assault

him.    For that reason, DeLeon instead decided to get his gun from

the trunk of his vehicle.          DeLeon told the group to stay back and

fired a warning shot in the air, at which point two members of
the group ran away.        Powell and two others still continued to

proceed in DeLeon’s direction.           DeLeon then gave another verbal

warning and shot three times into the ground.               Powell and the two

others were still approaching him, and DeLeon pointed his gun at

Powell.     Powell put his hands up and said, “[w]hat, you think one

gun is going to stop us all?”           DeLeon admitted that when he shot

Powell, Powell had his hands open and raised, was unarmed, and

did not attempt to take the gun away from DeLeon.                DeLeon

testified that Powell was “at arm’s length” from DeLeon when he

shot him.

             Generally, self-defense using deadly force is not a

lawful action to stop a simple assault, and thus, there is no

dispute as to who was the first aggressor.              See HRS § 703-304(2)

(use of deadly force justifiable if the actor believes that

deadly force is necessary to protect himself against death,

serious bodily injury, kidnapping, rape, or forcible sodomy); cf.

State v. Pearson, 288 N.C. 34, 40, 215 S.E.2d 598, 603 (N.C.

1975) (exception to general rule where “there is a great

disparity in strength between the defendant and the assailant, or
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where the defendant is attacked by more than one assailant.”)

            Under the totality of the circumstances, the situation

in the instant case falls under the exception to this general

rule.   The following testimony, when viewed together, was

sufficient to raise a factual dispute as to whether Powell or

Beaudoin could be the first aggressor: (1) DeLeon, by himself,

faced Powell and his group, which consisted of three to four
people, including Beaudoin;(2) someone from that group said,

“[t]here’s that fucking Mexican”; (3) Powell, and possibly two

others from the group, which may have included Beaudoin,

continued to approach after DeLeon fired warning shots into the

air and ground and told them several times to stay back; (4) as

Powell continued to approach, Powell stated, “[w]hat, you think

one gun is going to stop us all?” when he was within arm’s length

of DeLeon.     While DeLeon used deadly force on an unarmed

attacker, there is a factual dispute as to whether DeLeon was

being attacked by multiple assailants, which is an exception to

the general rule that a claim of self-defense fails when deadly

force is used to stop a simple assault.

            Thus, we conclude that the circuit court erred in

finding that there was no factual dispute as to who was the first

aggressor.15    Since there was a factual dispute as to who was the


      15
            DeLeon makes an additional argument, based on Basque, that the
circuit court’s jury instruction on provocation established that there was a
fact at issue as to who was the aggressor. In DeLeon’s trial, as part of the
circuit court’s self-defense instruction, the court stated, “[t]he use of
deadly force is not justifiable if the defendant, with the intent of causing
                                                                (continued...)
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first aggressor, and DeLeon raised the claim of self-defense, the

circuit court abused its discretion in categorically excluding

evidence of Powell’s and Beaudoin’s prior violent acts.               Given

the conflicting evidence regarding the circumstances of the

shooting, and the direct relevance of the excluded evidence to

DeLeon’s self-defense claim, we conclude that the error was not

harmless, and that DeLeon’s convictions must accordingly be
vacated.16    See Basque, 66 Haw. at 515, 666 P.2d at 603.

                               V.   Conclusion

             For the foregoing reasons, we vacate the ICA’s

December 13, 2017 Judgment on Appeal and the circuit court’s



      15
       (...continued)
death or serious bodily injury, provoked the use of force against himself in
the same encounter.”

            In Basque, the trial court gave a similar instruction. 66 Haw. at
513, 666 P.2d at 602. After reviewing the testimony presented at trial, this
court stated:
            Given such testimony, it is evident that a factual
            question existed as to who was the aggressor in this
            case. The trial court implicitly acknowledged as much
            when, as part of its “self-defense” jury instruction,
            it stated: “In order for the defendant to have been
            justified in the use of deadly force in self-defense,
            he must not have provoked the assault on him or have
            been the aggressor.”

Id. (citation omitted).

            Similarly here, while not dispositive on the issue, the circuit
court’s jury instruction supports a finding that there was a fact at issue as
to who was the first aggressor.
      16
            As this court noted in Basque, “[o]n remand, the trial court shall
retain the discretion to determine to what extent, and in what manner,
evidence of the deceased’s criminal record may be allowed in and alluded to.”
66 Haw. at 515, 666 P.2d at 603 (citation omitted). “Some of the factors the
trial court may consider are the nature of the prior crimes, wrongs, or acts,
their proximity in time to the present incident, and the amount and type of
extrinsic evidence which will be needed to establish those acts.” Id. at 515
n.6, 666 P.2d at 603 n.6.
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August 5, 2015 Judgment, and remand the case for further

proceedings consistent with this opinion.

William H. Jameson, Jr.,                  /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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