  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   30-JUN-2020
                                                   07:51 AM



                           NO. CAAP-XX-XXXXXXX

                IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


                            STATE OF HAWAI#I,
                           Plaintiff-Appellee,
                                    v.
                               AIVEN ANGEI,
                           Defendant-Appellant


         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                      (CR. NO. 1CPC-XX-XXXXXXX)


                    SUMMARY DISPOSITION ORDER
     (By: Chan, Presiding Judge, Hiraoka and Wadsworth, JJ.)

           Defendant-Appellant Aiven Angei (Angei) appeals from
the November 20, 2018 Judgment of Conviction and Sentence,
entered by the Circuit Court of the First Circuit (circuit
court).1   On February 1, 2018, Plaintiff-Appellee State of
Hawai#i (State) charged Angei by indictment with Murder in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§ 707-701.5 (2014).     After a jury trial, Angei was found guilty
of the lesser included offense of Manslaughter based on reckless
conduct (Reckless Manslaughter), in violation of HRS
§ 707-702(1)(a) (2014).      The circuit court then sentenced Angei
to twenty years of imprisonment.
           Angei argues that the circuit court erred in: (1)


     1
           The Honorable Rom A. Trader presided.
     NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


denying his request to instruct the jury on the lesser included
offense of Reckless Endangering in the Second Degree, HRS
§ 707-714 (2014); and (2) denying Angei's motion for judgment of
acquittal.
             Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Angei's
points of error as follows and affirm.
A.     Jury Instructions
             "[W]hen jury instructions or the omission thereof are
at issue on appeal, the standard of review is whether, when read
and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent or
misleading."     State v. Flores, 131 Hawai#i 43, 57-58, 314 P.3d
120, 134-35 (2013) (citations and quotation marks omitted).                   "The
failure to instruct the jury on a lesser included offense for
which the evidence provides a rational basis warrants vacation of
the defendant's conviction."           Id. at 58, 314 P.3d at 135.
             We first determine whether Reckless Endangering in the
Second Degree is a lesser included offense of Murder in the
Second Degree.        See id. at 52-53, 314 P.3d at 129-30.          An offense
is included in another charged offense if it meets one of the
requirements set forth in HRS § 701-109(4).              Relevant to this
appeal, HRS § 701-109(4)(c) (2014) provides:
                   (4) A defendant may be convicted of an offense
             included in an offense charged in the indictment or the
             information. An offense is so included when:

             . . .

                     (c)   It differs from the offense charged only in the
                           respect that a less serious injury or risk of
                           injury to the same person, property, or public
                           interest or a different state of mind indicating
                           lesser degree of culpability suffices to
                           establish its commission.

"[S]ubsection (c) 'expands the doctrine of lesser included
offenses to include crimes that require a less serious injury or

                                         2
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


risk of injury.'"   State v. Kaeo, 132 Hawai#i 451, 461, 323 P.3d
95, 105 (2014) (ellipsis omitted) (quoting State v. Burdett, 70
Haw. 85, 90, 762 P.2d 164, 167 (1988)).     "The degree of
culpability, degree of injury or risk of injury and the end
result are some of the factors considered in determining whether
an offense is included in another under HRS § 701-109(4)(c)."
Id. (internal quotation marks omitted) (quoting State v. Kupau,
63 Haw. 1, 7, 620 P.2d 250, 254 (1980)).
           First, as for the degree of culpability, "the lesser
included offense cannot have a mental state greater than or
different from that which is required for the charged offense."
State v. Alston, 75 Haw. 517, 534, 865 P.2d 157, 166 (1994)
(emphasis omitted).   Murder in the Second Degree requires the
state of mind of "intentionally or knowingly caus[ing] the death
of another person."   HRS § 707-701.5.    Reckless Endangering in
the Second Degree requires the state of mind of "recklessly
plac[ing] another person in danger of death or serious bodily
injury."   HRS § 707-714(1)(a).   Because recklessness is a lesser
mental state than intent or knowledge, Reckless Endangering in
the Second Degree does not have a mental state that is greater
than that required for Murder in the Second Degree.      See
Commentary to HRS § 702-208 (2014) ("[I]ntent, knowledge,
recklessness, and negligence are in a descending order of
culpability[.]").   The two offenses also do not require
"different" mental state requirements.     See Alston, 75 Haw. at
534, 865 P.2d at 166 (holding that terroristic threatening and
intimidating a witness have different mental state requirements
because "intimidating a witness requires the intent to cause
another's absence from an official proceeding, and terroristic
threatening requires the intent to cause, or recklessness in
causing, terror" (emphases added)).
           Second, as to the degree or risk of injury, Murder in
the Second Degree under HRS § 707-701.5 requires "caus[ing] the
death of another person," (emphasis added) while Reckless


                                  3
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


Endangering in the Second Degree under HRS § 707-714(1)(a)
requires "plac[ing] another person in danger of death or serious
bodily injury" (emphasis added).       Committing an act that places
another individual in danger of death or "bodily injury which
creates a substantial risk of death," HRS § 707-700 (2014), is a
less serious risk of injury than the actual causing of death, for
one cannot cause the death of another without first placing the
other in danger of death.   See Kaeo, 132 Hawai#i at 462, 323 P.3d
at 106.
          Third, we consider the end results of both offenses.
Our case law indicates that HRS § 701-109(4)(c) applies where
"there may be some dissimilarity in the facts necessary to prove
the lesser offense, but the end result is the same."      State v.
Kinnane, 79 Hawai#i 46, 55, 897 P.2d 973, 982 (1995) (quoting
Alston, 75 Haw. at 536, 865 P.2d at 167).      However, the supreme
court has expressly held that the "end result" factor is not
dispositive and is simply a factor to be considered.      Kaeo, 132
Hawai#i at 464, 323 P.3d at 108.
          Strictly speaking, the end results of Murder in the
Second Degree and Reckless Endangering in the Second Degree are
not the same.   Murder in the Second Degree results in the death
of another while Reckless Endangering in the Second Degree places
the victim in jeopardy of death or serious bodily injury but does
not necessarily result in the death of the victim.      Reckless
Endangering in the Second Degree need not always result in bodily
injury to the victim; all that is required is that the victim be
placed in danger of death or serious bodily injury.      However, the
end results of both Murder in the Second Degree and Reckless
Endangering in the Second Degree are offenses against the person
and involve at least the risk of death.      Cf. Kaeo, 132 Hawai#i at
464-65, 323 P.3d at 108-09 (holding that the "end result" factor
weighed in favor of finding assault in the first degree to be a
lesser included offense of murder in the second degree where both
offenses are "classified as offenses against the person, and both


                                   4
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


result in actual physical harm to a person[,]" even though murder
results in death and assault results in bodily injury); Kinnane,
79 Hawai#i at 56, 897 P.2d at 983 (finding the end results of
attempted sexual assault in the second degree and sexual assault
in the fourth degree to be the same because "[i]n both instances
the victim is placed in jeopardy of being injured or is being
injured by the defendant's conduct," (ellipsis, internal
quotation marks, and citation omitted) even though sexual assault
in the fourth degree "envisions a less serious injury or risk of
injury [(sexual contact)] than attempted sexual assault in the
second degree [(risk of sexual penetration)]").
            Considering all factors, we conclude that Reckless
Endangering in the Second Degree is a lesser included offense of
Murder in the Second Degree under HRS § 701-109(4)(c).
            We next determine whether there was a rational basis in
the evidence in this case to support an instruction on the lesser
included offense of Reckless Endangering in the Second Degree.
See Flores, 131 Hawai#i at 51, 314 P.3d at 128 ("[J]ury
instructions on lesser-included offenses must be given where
there is a rational basis in the evidence for a verdict
acquitting the defendant of the offense charged and convicting
the defendant of the included offense.").
            This court decided a similar issue in State v.
Magbulos, 141 Hawai#i 483, 413 P.3d 387 (App. 2018), cert.
rejected, No. SCWC-XX-XXXXXXX, 2018 WL 3062557 (Haw. June 21,
2018).    In that case, the defendant was charged with and
convicted of murder in the second degree.     Id. at 484, 413 P.3d
at 388.    The trial court had instructed the jury on the lesser
included offenses of reckless manslaughter and first-degree
assault, but denied the defendant's request to instruct the jury
on the lesser included offenses of assault in the second degree,
assault in the third degree, and assault in the third degree by
mutual affray.    Id. at 498, 413 P.3d at 402.   On appeal, the
defendant asserted that the trial court erred in denying his


                                  5
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


request to instruct the jury on the additional lesser included
offenses.    Id.   This court discussed the development of the law
on giving jury instructions on lesser included offenses,
including State v. Haanio, 94 Hawai#i 405, 16 P.3d 246 (2001),
Flores, 131 Hawai#i 43, 314 P.3d 120, and Kaeo, 132 Hawai#i 451,
323 P.3d 95.    Magbulos, 141 Hawai#i at 498-99, 413 P.3d at
402-03.   Applying the law to the facts of that case, this court
then held:
                  Here, the jury, after being instructed on the lesser
            included offenses of reckless manslaughter and first-degree
            assault, convicted [the defendant] of the charged offense of
            second-degree murder. Thus, unlike in Flores and Kaeo, the
            failure of the Circuit Court to instruct on the lower-level
            assault offenses did not present [the defendant's] jury with
            an "all or nothing" choice between the guilty verdict it
            rendered and a "complete acquittal." Instead, the jury had
            the option of finding [the defendant] guilty of manslaughter
            or finding him guilty of first-degree assault, but chose to
            find him guilty as charged of second-degree murder.

                  Under these circumstances, we need not consider
            whether there was a rational basis in the evidence to acquit
            [the defendant] of second-degree murder and convict him of
            the lower-level assault offenses because we conclude that
            any error in failing to instruct on the lower-level assault
            offenses was harmless beyond a reasonable doubt. While the
            failure to instruct on a lesser included offense just below
            the offense for which the jury returned a guilty verdict is
            not automatically harmless error, we conclude that absent
            unusual circumstances, the failure to instruct on a lesser
            included offense two levels below the offense for which the
            defendant is found guilty will ordinarily be harmless. In
            this case, [the defendant] is contending that the failure to
            instruct on lesser included offenses that are at least three
            levels below the second-degree murder for which the jury
            found him guilty entitles him to a new trial. It strains
            credulity to believe that the jury who found [the defendant]
            guilty as charged of second-degree murder, despite being
            instructed on the lesser included offenses of manslaughter
            and first-degree assault, might reasonably have found him
            guilty of the lower-level assault offenses if instructed on
            these offenses. We therefore conclude that there is no
            reasonable possibility that the Circuit Court's failure to
            instruct on the lower-level assault offenses affected the
            outcome of this case.

Id. at 499, 413 P.3d at 403.
            Magbulos is dispositive in favor of the State in this
case.   Here, Angei was charged with Murder in the Second Degree.
The circuit court instructed the jury on the lesser included
offenses of Reckless Manslaughter, Assault in the First Degree,

                                      6
     NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


Assault in the Second Degree, and Assault in the Third Degree.
The jury ultimately convicted Angei of Reckless Manslaughter.               As
in Magbulos, the jury was not faced with an "all or nothing"
choice between the guilty verdict and a "complete acquittal"
because the jury had the option of finding Angei guilty of lesser
included offenses extending to multiple levels below the charged
offense, but chose instead to find him guilty of Reckless
Manslaughter.      It "strains credulity" to believe that the jury
who found Angei guilty of Reckless Manslaughter and rejected
finding him guilty of any of the lesser included offenses of
first-, second-, and third-degree assault, might reasonably have
found him guilty of the lower-level offense of Reckless
Endangering in the Second Degree if instructed on this offense.
See id.; see also State v. Manuel, No. CAAP-XX-XXXXXXX, 2019 WL
1747020, at *3 (Haw. App. Apr. 18, 2019) (SDO), cert. granted,
No. SCWC-XX-XXXXXXX, 2019 WL 4165809 (Haw. Sept. 3, 2019).
             Thus, we conclude that there is no reasonable
possibility that the circuit court's failure to instruct on
Reckless Endangering in the Second Degree affected the outcome of
this case.
B.     Motion for Judgment of Acquittal
             Angei next argues that the circuit court erred in
denying his motion for judgment of acquittal and rejecting his
argument that the State failed to adduce evidence of compliance
with the statutory requirements of HRS § 327C-1 (2010) pertaining
to the decedent's death.
             When reviewing the denial of a motion for judgment of
acquittal,
             we employ the same standard that a trial court applies to
             such a motion, namely, 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, the
             evidence is sufficient to support a prima facie case so that
             a reasonable mind might fairly conclude guilt beyond a
             reasonable doubt. Sufficient evidence to support a prima
             facie case requires substantial evidence as to every
             material element of the offense charged. Substantial
             evidence as to every material element of the offense charged
             is credible evidence which is of sufficient quality and

                                       7
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


          probative value to enable a person of reasonable caution to
          support a conclusion. Under such a review, we give full
          play to the right of the fact finder to determine
          credibility, weigh the evidence, and draw justifiable
          inferences of fact.

State v. Jhun, 83 Hawai#i 472, 481, 927 P.2d 1355, 1364 (1996)
(citations and quotation marks omitted).
          In his written motion for judgment of acquittal, Angei
appeared to challenge the sufficiency of the evidence as to the
element that Angei intentionally or knowingly caused the
decedent's death.   Angei argued in part that he did not cause the
decedent's death because when the decedent was brought to the
hospital, he was alive, and "[r]ather than keeping the decedent
'alive', a decision was made to 'pull the plug' by the family[.]"
The remainder of his written motion, however, is premised on the
alleged failure to comply with HRS chapter 327C.
          HRS § 327C-1(a)-(d) provides:
                §327C-1. Determination of death. (a) Except as
          provided in subsection (b), a person shall be considered
          dead if, in the announced opinion of a physician or
          osteopathic physician licensed under part I of chapter 453,
          physician or osteopathic physician excepted from licensure
          by section 453-2(b)(3), physician assistant licensed under
          chapter 453, or registered nurse licensed under chapter 457,
          based on ordinary standards of current medical practice, the
          person has experienced irreversible cessation of spontaneous
          respiratory and circulatory functions. Death will have
          occurred at the time when the irreversible cessation of the
          functions first coincided.

                (b) In the event that artificial means of support
          preclude a determination that respiratory and circulatory
          functions have ceased, a person shall be considered dead if,
          in the opinion of an attending physician or osteopathic
          physician licensed under part I of chapter 453, or attending
          physician or osteopathic physician excepted from licensure
          by section 453-2(b)(3), and of a consulting physician or
          osteopathic physician licensed under part I of chapter 453,
          or consulting physician or osteopathic physician excepted
          from licensure by section 453-2(b)(3), based on ordinary
          standards of current medical practice, the person has
          experienced irreversible cessation of all functions of the
          entire brain, including the brain stem. The opinions of the
          physicians or osteopathic physicians shall be evidenced by
          signed statements. Death will have occurred at the time
          when the irreversible cessation of all functions of the
          entire brain, including the brain stem, first occurred.
          Death shall be pronounced before artificial means of support
          are withdrawn and before any vital organ is removed for
          purposes of transplantation.

                                    8
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


                 (c) When a part of a donor is used for direct organ
           transplantation under chapter 327, and the donor's death is
           established by determining that the donor experienced
           irreversible cessation of all functions of the entire brain,
           including the brain stem, the determination shall only be
           made under subsection (b). The determination of death in
           all other cases shall be made under subsection (a). The
           physicians or osteopathic physicians making the
           determination of death shall not participate in the
           procedures for removing or transplanting a part, or in the
           care of any recipient.

                 (d) All death determinations in the State shall be
           made pursuant to this section and shall apply to all
           purposes, including but not limited to civil and criminal
           actions, any laws to the contrary notwithstanding; provided
           that presumptive deaths under the Uniform Probate Code shall
           not be affected by this section.

           On appeal, Angei argues that neither of the two
physicians who made pronouncements regarding the decedent's death
was described as an "attending physician" or an "osteopathic
physician."   Angei additionally contends that while the first
physician pronounced the decedent "brain dead," the second
physician pronounced the decedent "cardiac dead."           Furthermore,
"[t]heir pronouncements were not memorialized by signed
statements as required by statute."        Angei asserts that, because
the State failed to adduce evidence of compliance with HRS
chapter 327C, it did not meet its burden of proof regarding the
cause of decedent's death.
           HRS § 327C-1(d) states, in relevant part: "All death
determinations in the State shall be made pursuant to this
section and shall apply to all purposes, including . . . criminal
actions[.]"   However, nowhere in the statute or the chapter in
which it appears does it describe any consequences for a failure
to comply with its outlined procedure for the determination of
death, and what effect, if any, any such violation may have on
criminal proceedings involving an individual's death.            Neither
the statute nor the chapter in which it appears requires
compliance with the procedure in proving the death of an
individual for the purpose of proving an element of a criminal
offense.   There is no requirement that the State prove compliance


                                     9
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


with HRS chapter 327C in order to make a prima facie case of a
decedent's death as an element of an offense for which a
defendant is on trial.   To that extent, we hold that there is no
merit to the basis upon which Angei relies in challenging the
sufficiency of the evidence showing that Angei caused the
decedent's death.
          Rather, we conclude that there is sufficient evidence
in the record to support a prima facie case.     Syres Kauai
(Kauai), the decedent's friend who witnessed the incident,
testified that during the physical altercation between Angei and
the decedent, Angei had a knife with an approximately four-inch
blade in his right hand while exchanging blows with the decedent.
After Angei and the decedent ended their physical altercation and
separated, Angei fled and Kauai noticed the decedent bleeding.
While on the phone with an emergency operator, Kauai attempted to
apply pressure to the decedent's multiple stab wounds before the
decedent was taken to the hospital.    Of relevance, the parties
also stipulated to the following facts, which were read to the
jury: "[o]n January 29, 2018, at approximately 8:15 a.m.,
Dr. Chang made a brain death pronouncement for [the decedent] at
Queen's Medical Center"; and "[o]n January 30, 2018, at
approximately 5:56 p.m., the body was transferred to the Queen's
Medical Center operating room.    Dr. Jacqueline Lee pronounced the
decedent cardiac dead prior to organ donation."      Christopher
Happy, M.D., the chief medical examiner for the City and County
of Honolulu who conducted an autopsy on the body of the decedent,
testified that the cause of death was stab wounds to the head and
torso.   These facts constitute substantial evidence for the jury
to conclude that Angei caused the decedent's death.
          In light of this record, and in consideration of the
right of the jury to determine credibility, weigh the evidence,
and draw justifiable inferences of fact, we conclude that the
State adduced substantial evidence of the element that Angei
caused the death of the decedent.     Accordingly, the circuit court


                                 10
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


did not err in denying Angei's motion for judgment of acquittal.
          Based on the foregoing, the November 20, 2018 Judgment
of Conviction and Sentence, entered by the Circuit Court of the
First Circuit, is affirmed.
          DATED:   Honolulu, Hawai#i, June 30, 2020.


On the briefs:
                                      /s/ Derrick H. M. Chan
Chad Kumagai,                         Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.               /s/ Keith K. Hiraoka
                                      Associate Judge
Dana S. Ishibashi,
for Defendant-Appellant.
                                      /s/ Clyde J. Wadsworth
                                      Associate Judge




                                 11
