   ***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000588
                                                               20-MAR-2017
                                                               08:41 AM




                             SCWC-12-0000588


            IN THE SUPREME COURT OF THE STATE OF HAWAI'I




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


                                    vs.


            SCOTT YANG, Petitioner/Defendant-Appellant.




         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

               (CAAP-12-0000588; CR. NO. 10-1-0899)


                     SUMMARY DISPOSITION ORDER

  (By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,

   and Circuit Judge Kuriyama, in place of Wilson, J., recused)


           Petitioner/Defendant-Appellant Scott Yang seeks review


of the July 1, 2016 Judgment on Appeal of the Intermediate Court


of Appeals (ICA), entered pursuant to the ICA’s May 12, 2016


Summary Disposition Order.       The judgment affirmed the Circuit


Court of the First Circuit’s (circuit court) May 12, 2012

   ***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


Judgment,1
 which convicted Yang of Counts VI and VIII in


violation of Hawai'i Revised Statutes (HRS) § 709-906(1)2
 and

(5).3


           On certiorari, Yang contends that the ICA erred in


holding that (1) regarding Count VI, the self-defense and defense


of others jury instructions were not plainly erroneous; and (2)


regarding Count VIII, the circuit court did not err in refusing


the time-specific elements instruction and denying his motion to



     1
           The Honorable Michael D. Wilson presided. 

     2
           HRS § 709-906(1) (Supp. 2012) provides: 


           (1) It shall be unlawful for any person, singly or in

           concert, to physically abuse a family or household

           member or to refuse compliance with the lawful order

           of a police officer under subsection (4). The police,

           in investigating any complaint of abuse of a family or

           household member, upon request, may transport the

           abused person to a hospital or safe shelter.

     3
           HRS § 709-906(5) (Supp. 2012) provides: 


           (5) Abuse of a family or household member and refusal

           to comply with the lawful order of a police officer

           under subsection (4) are misdemeanors and the person

           shall be sentenced as follows:


                 (a) For the first offense the person shall serve

           a minimum jail sentence of forty-eight hours; and 


                 (b) For a second offense that occurs within one

           year of the first conviction, the person shall be

           termed a “repeat offender” and serve a minimum jail

           sentence of thirty days.


           Upon conviction and sentencing of the defendant, the

           court shall order that the defendant immediately be

           incarcerated to serve the mandatory minimum sentence

           imposed; provided that the defendant may be admitted

           to bail pending appeal pursuant to chapter 804. The

           court may stay the imposition of the sentence if

           special circumstances exist.


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dismiss and motion for judgment of acquittal. 


           This court accepted Yang’s application for writ of


certiorari, and we now affirm the ICA’s judgment on appeal as to


Count VI, vacate the ICA’s judgment on appeal and the circuit


court’s judgment as to Count VIII, and remand the case to circuit


court as to Count VIII for further proceedings.


           With respect to the self-defense jury instructions


given as to Count VI, we conclude that the circuit court properly


gave the relevant jury instructions.         Thus, the ICA did not err


in affirming the circuit court’s judgment as to Count VI.


           With respect to Count VIII, we conclude that the


circuit court erred in denying Yang’s motion to dismiss.             We find


persuasive Yang’s argument that the trial testimony of the


complaining witness created a material time variance from the


State’s response to the notice of alibi, thereby undermining the


defense that Yang prepared.       We further note that the State


conceded in its closing argument that it did not prove Count VIII


beyond a reasonable doubt.       However, we conclude that there was


sufficient evidence to support a conviction, and that the circuit


court did not err in denying the motion for judgment of


acquittal.


           Accordingly, we affirm the ICA’s July 1, 2016 Judgment


on Appeal as to Count VI, and vacate the ICA’s July 1, 2016


Judgment on Appeal and the circuit court’s May 12, 2012 Judgment


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as to Count VIII, and remand the case to circuit court for

further proceedings consistent with this Order.

           DATED:   Honolulu, Hawai'i, March 20, 2017.

Phyllis J. Hironaka                 /s/ Mark E. Recktenwald

for petitioner

                                    /s/ Paula A. Nakayama

Brian R. Vincent

for respondent

                                    /s/ Sabrina S. McKenna


                                    /s/ Richard W. Pollack


                                    /s/ Christine E. Kuriyama





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