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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-30161
                                                                 19-AUG-2013
                                                                 08:30 AM



              IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                            ---o0o---
________________________________________________________________

            STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellee,

                                       vs.

       PAMELA L. TAYLOR, Respondent/Defendant-Appellant.
________________________________________________________________

                                  SCWC-30161

             CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                   (ICA NO. 30161; CR. NO. 08-1-0331)

                               AUGUST 19, 2013

            RECKTENWALD, C.J., NAKAYAMA AND MCKENNA, JJ.,
     AND CIRCUIT JUDGE GARIBALDI, ASSIGNED BY REASON OF VACANCY;
         WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY

               AMENDED OPINION OF THE COURT BY MCKENNA, J.

I.    Introduction

       The State asks us in this appeal to overrule the plurality

opinion in State v. Stenger, 122 Hawai‘i 271, 226 P.3d 441

(2010).     Despite the apparent confusion regarding its actual

holding, Stenger does not stand for the proposition for which it

is sometimes cited; therefore, we decline to overrule Stenger.

“[A] court should not overrule its earlier decisions unless the
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most cogent reasons and inescapable logic require it.”            Johnston

v. KFC Nat’l Mgmt. Co., 71 Haw. 229, 233, 788 P.2d 159, 161

(1990) (internal quotations and citations omitted).           Due to the

confusion, however, we do take the opportunity to clarify

Stenger’s holding.

     Since Stenger’s publication, our appellate courts have

interpreted the case inconsistently.         A dissent to one of our

dispositions notes that Stenger held that a trial court has a

duty to sua sponte give a jury instruction on a defense that the

defendant has not asked for, where there is some evidence

supporting the defense, no matter how weak, inconclusive, or

unsatisfactory the evidence may be.         See, e.g., State v. Pang,

No. 29003 (Haw. Aug. 30, 2010) (dissent to order rejecting

application for writ of certiorari) at 1.         Many of the

Intermediate Court of Appeals’ (“ICA”) dispositions note that

Stenger held that the trial court has a limited duty to sua

sponte instruct the jury on a particular defense only if (1) it

appears that the defendant is relying on such a defense, or (2)

if there is substantial evidence supportive of such a defense,

and the defense is not inconsistent with the defendant’s theory

of the case, citing the alternative standard that Chief Justice

Moon suggested in dissent.      Stenger, 122 Hawai‘i at 299, 226 P.3d

at 469 (Moon, C.J., dissenting).         See, e.g., State v. Yue, No.


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29141 (App. Sept. 23, 2010)(SDO) at 7; State v. Metcalfe, No.

30518 (App. Mar. 30, 2012)(mem.) at 15; State v. Mabson, No.

29386, (App. Sept. 28, 2011)(SDO) at 3.         Even though unpublished

dispositions of the appellate courts are “not precedent,” they

may nonetheless be “cited for persuasive value.”           Hawai‘i Rules

of Appellate Procedure Rule 35(c)(2)(2010).          Hence, the need for

clarity is apparent.

     In the process of clarifying Stenger, we also reexamine our

holding in State v. Nichols, 111 Hawai‘i 327, 141 P.3d 974

(2006).   It is this court’s duty to revisit our legal rules from

time to time, as circumstances demand:
          Blind adherence to legal rules constitutes an abrogation of
          the judicial function. Such blind adherence may result as
          much from adoption of a rule without adequate analysis as
          from application of a precedent without examination of its
          claim to validity. Legal rules should result from, rather
          than be a substitute for, legal analysis. Judicial
          rumination of ideas in a multitude of factual circumstances
          gives birth to rules. And continued rumination insures that
          such rules will be applied only as long as they serve the
          function for which they were designed.

Columbia Casualty Co. v. Hoohuli, 50 Haw. 212, 217, 437 P.2d 99,

104 (1968).   On the issue of how appellate courts are to review

the impact of an unrequested mistake of fact jury instruction,

denominated as error for the first time on appeal, we clarify and

hold that such error is to be reviewed first for plain error.               In

the case of an unrequested mistake of fact jury instruction,

plain error exists if the defendant, at trial, had met his or her

initial burden to adduce credible evidence of facts constituting

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the defense (unless those facts are supplied by the prosecution’s

witnesses).      See Stenger, 122 Hawai‘i at 280, 226 P.3d at 450

(citing State v. Locquiao, 100 Hawai‘i 195, 206, 58 P.3d 1242,

1253 (2002) and the Commentary to Hawai‘i Revised Statutes

(“HRS”) § 701-115 (1993)).         If the omission of the unrequested

mistake of fact jury instruction constitutes plain error, it

shall be a basis for reversal of the defendant’s conviction only

if an examination of the record as a whole reveals that the error

was not harmless beyond a reasonable doubt.

II.    Background

       A.   The Trial1

       Respondent/Defendant-Appellant Pamela Taylor was charged by

Felony Information and Non-Felony Complaint with Theft in the

Second Degree, in violation of HRS §§ 708-830(2) (1993)2 and 708-

831(1)(b) (1993)3 (Count I); and            Unauthorized Practice of Law,

in violation of HRS §§ 605-144 and -17 (1993 & Supp. 2007)5
1
       The Honorable Dexter D. Del Rosario presided.

2
      At the time of the alleged offense, as it does now, HRS § 708-830(2)
provided that “[a] person commits theft if the person . . . obtains, or exerts
control over, the property of another by deception with intent to deprive the
other of the property.”

3
    At the time of the alleged offense, as it does now, HRS § 708-831(1)(b)
provided that “[a] person commits the offense of theft in the second degree if
the person commits theft . . . [o]f property or services the value of which
exceeds $300[.]”

4
    At the time of the alleged offense, as it does now, HRS § 605-14 provided:
            Unauthorized practice of law prohibited. It shall be
            unlawful for any person, firm, association, or corporation
                                                      (continued . . . )

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(Count II).    The charges stemmed from a period of time in

February 2007 in which Taylor allegedly offered to provide legal

services to Mariko Bereday, and subsequently obtained or exerted

control over a retainer check for $7,000.00 by deception.

      Taylor defended against these allegations by asserting that

she herself was a victim of deception.          She testified she

believed she was offering legal services to Bereday on behalf of

Ismael Serna Lara6 and Damon Roth, two individuals she assumed

were lawyers working for a firm called Legal Associate Services,

Inc., LLC.

      The complaining witness, Mariko Bereday, testified to the

events leading up to Taylor’s prosecution as follows.             Bereday’s

friend had referred Taylor to her as an attorney.            When Taylor

went to Bereday’s home for their first meeting, Taylor stated she

was previously a federal public defender but was currently an

attorney working at a 35-person law firm.
      (. . . continued)
            to engage in or attempt to engage in or to offer to engage
            in the practice of law, or to do or attempt to do or offer
            to do any act constituting the practice of law, except and
            to the extent that the person, firm, or association is
            licensed or authorized so to do by an appropriate court,
            agency, or office or by a statute of the State or of the
            United States. Nothing in sections 605-14 to 605-17
            contained shall be construed to prohibit the preparation or
            use by any party to a transaction of any legal or business
            form or document used in the transaction.
5
    At the time of the alleged offense, as it does now, HRS § 605-17 provided
that a violation of HRS § 605-14 is a misdemeanor. Taylor was acquitted on
the Unauthorized Practice of Law count.

6
    Serna Lara was named as a co-defendant in the information and complaint
but could not be located for trial.

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     Taylor went to Bereday’s home again with a retainer

agreement, which Bereday did not sign, and asked for a $30,000

retainer.    Because Bereday could only afford $7,000, she wrote

out a check in that amount, with the payee line blank at Taylor’s

direction.    The very next day, Taylor called her from the bank

where Taylor was attempting to cash the check.          Bereday asked

Taylor why the check had to be cashed, and Taylor stated that her

boss wanted to make sure Bereday’s money was good.

     That morning, $7,000.00 was drawn on Bereday’s account.

Bereday later became suspicious and asked the bank to see the

copy of the check.    Bereday was surprised to see Serna Lara’s

name on the payee line, having never dealt with him.

     After learning that there was no such law firm as Legal

Associate Services, Inc., LLC and that Taylor was not an

attorney, Bereday confronted Taylor and demanded her money back.

Taylor returned to Bereday’s home with a Capitol One check for

$7,000.00 with Taylor’s “law number” written on it.           The check

turned out to be a “bogus” check not connected to any checking

account.    Bereday never got her money back.

     Other witnesses for the State testified consistently with

Bereday’s testimony.     Julie Tablit, a customer service manager at

the Kapolei Branch of Central Pacific Bank (“CPB”), testified

that Taylor took the lead in attempting to cash Bereday’s


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$7,000.00 check.    Tablit testified that a male and a female (whom

she later positively identified through photographic line-ups as

Serna Lara and Taylor, respectively) presented a questionable

check to one of the bank tellers.        The teller called Tablit over

because the check amount was over her cashing limit, and Tablit

spoke with Taylor, who stated that the check was for “payment or

service that was rendered to Ms. Bereday.”         Tablit attempted to

speak with Serna Lara, but Taylor informed her that he did not

speak English.    According to Tablit, Serna Lara did not do

anything or say anything during the five minutes that Tablit and

Taylor spoke.    That day, Tablit also confirmed Serna Lara’s

identity through his Hawai‘i drivers license.          Serna Lara also

inked his thumbprint upon the check, per bank procedures.             Tablit

could not reach Bereday by phone, so she refused to cash the

check and directed Taylor and Serna Lara to the Kahala Times

Supermarket in-store branch of CPB, Bereday’s home branch, for

further action.

     Stephanie Hirayama, the manager of that branch, testified

that a male and a female (whom she did not rule out in a later

photographic lineup as Serna Lara and Taylor), came in to cash

the $7,000.00 check.     Even though Serna Lara was the payee,

Taylor did all the talking.      Hirayama testified that Bereday, by




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phone, authorized her to cash the check, and that Taylor was the

one who took the $7,000.00 cash off the counter.

     Glenn Taniguchi, an accountant and attorney who had a long-

standing professional relationship with Bereday, testified that

he also discovered Taylor was not listed in the bar directory.

When he confronted Taylor with that fact, Taylor told him she was

listed under her maiden name, Pamela Merch.          Taniguchi confirmed

that a “Pamela Merch” was an inactive attorney.           Unable to reach

Merch under the Maryland telephone number in the bar directory,

Taniguchi abandoned his efforts to confirm Taylor’s credentials.

Taniguchi later demanded that Taylor return the $7,000.00 in the

form of a cashier’s check or cash to Bereday by a date certain,

which Taylor agreed to do but did not do.         Instead, Bereday

received the bogus $7,000.00 check from Taylor.

     Although the State provided no evidence concerning Roth, the

State did provide evidence that there was no such business entity

by the name of Legal Associate Services, Inc., LLC, and that

Serna Lara was not an attorney.

     Testimony regarding Serna Lara came from David Wong, the

owner-operator of the former Mountain View Dairy in Wai#anae.               He

testified that Serna Lara had been a full-time cow-milker for

about ten years at the time of the alleged theft.           Wong testified

that Serna Lara lived in the employee housing complex on-site.


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Wong stated that he had seen Taylor at Serna Lara’s home before.

Wong testified that Serna Lara was not a licensed attorney, did

not work for a law firm, did not run a law office out of his

employee housing, and never mentioned anything about working at a

law firm.   Put plainly, Serna Lara was “[j]ust a milker.”

     Taylor testified in her own defense.         She testified that she

graduated from the David A. Clarke School of Law in Washington,

D.C. in 1998, moved to Hawai‘i in 2000, but never took the

Hawai‘i bar exam.    Taylor never disputed that she was not

licensed to practice law in Hawai‘i.        Taylor denied telling

Bereday or Taniguchi she was an attorney.

     Taylor testified generally that she took direction from

Serna Lara and Roth.     Taylor testified that Bereday spoke by

phone with Roth multiple times and directed that her $7,000.00

check be turned over to Roth.       Unable to reach Roth, Taylor

instead turned the check over to Serna Lara and later met up with

him at the Kapolei CPB branch.       After Tablit refused to cash the

check, Taylor and Serna Lara went to the Kahala CPB branch, where

Hirayama cashed the check and handed the money to Serna Lara.

Taylor testified that she never touched the money and did not

know what happened to the $7,000.00 in cash.

     Taylor testified that Serna Lara instructed her to visit

Bereday’s home again to deliver a receipt for the check and other


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paperwork.    After Bereday demanded a refund of the $7,000.00,

Serna Lara became “infuriated,” wrote out a refund check, and

directed Taylor to deliver the check to Bereday, which Taylor

did.

       Taylor testified that she believed Serna Lara and Roth were

attorneys because she met them through a mutual attorney friend,

Pamela Merch.    She said she believed Roth was an attorney because

he did not agree to meet with Taylor until Merch was on-island to

make the formal introduction at Roth’s Queen Street office.             She

allegedly believed Serna Lara was an attorney because when she

met him, he was “professional-looking” and “average articulate”

in his use of English.     Taylor testified that she filled out a

job application, was hired by Roth and Serna Lara in 2006, did

clerical work for both, and was paid by check per assignment.

       She testified that she had visited Serna Lara at the dairy

farm, and he explained that “he was an overseer of a set of the

farmers,” a job he held in addition to his work as an attorney at

the law firm.    On cross-examination, the State pointed out

photographic evidence that Serna Lara was not dressed

professionally (i.e., he was dressed in a shirt and shorts) when

he and Taylor attempted to cash the check on a regular business

day in the middle of the day.       Taylor testified that she did not

find his manner of dress curious.


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     She testified that she did not know Roth and Serna Lara were

not attorneys with a legitimate law firm.         Taylor testified that

she understood the process of becoming a licensed attorney but

never confirmed whether Serna Lara or Roth were licensed to

practice law in Hawai‘i.

     The defense did not submit any jury instructions.            All of

the court’s jury instructions were given by agreement.            There was

no instruction on mistake of fact.

     The jury found Taylor guilty of theft in the second degree

but acquitted her of unauthorized practice of law.           The trial

court issued its Judgment of Conviction and Sentence, sentencing

Taylor to five years of incarceration and restitution of

$7,000.00 to Bereday.     Taylor timely appealed.

     B.   The Appeal

     For the first time on appeal, Taylor argued, “The trial

court reversibly erred in sua sponte failing to instruct the jury

on the mistake-of-fact defense as to Theft2-Deception.”

Specifically, Taylor argued that she was operating under the

mistaken belief that she
           was acting on behalf of attorneys Serna Lara and Roth. . . .
           Since Taylor was mistaken as to the facts that Roth and
           Serna Lara (1) were not attorneys, (2) were not members of a
           35-person law firm, and (3) were ineligible to practice law,
           she was entitled to a “mistake of fact” instruction. In
           other words, Taylor did not commit Theft2 by deception
           because she did not accept Bereday’s check, knowing that
           Roth and Serna Lara intended to take the money without
           rendering legal services to Bereday.


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     Taylor further cited to Stenger, 122 Hawai#i 271, 226 P.3d

441, which was decided after she was convicted, for the

proposition that, where some evidence was adduced that the

defendant was laboring under a mistake of fact that could negate

the state of mind necessary to commit theft, the trial court was

required to sua sponte instruct the jury on the mistake of fact

defense, and the court’s failure to so instruct the jury was not

harmless beyond a reasonable doubt.        Taylor concluded by

requesting that the ICA vacate her Theft2-Deception conviction

and remand the case for a new trial, with an order that the court

instruct the jury on the mistake of fact defense.

     The State’s Answering Brief focused on Stenger.            The State

argued that Stenger was wrongly decided, for reasons set forth in

the Stenger dissent, authored by Justice Nakayama and joined by

Chief Justice Moon.     Those reasons were that requiring a sua

sponte mistake of fact jury instruction (1) requires the trial

court to advocate for the criminal defendant by identifying, and

therefore highlighting, all possible defenses to the jury; (2)

implicitly requires that the State (in order to stave off

automatic retrial) request an instruction on potentially all

defenses that are supported by any piece of weak evidence in the

record; and (3) incentivizes defense counsel not to request a

mistake-of-fact instruction in order to “receive an automatic

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retrial” when the issue is raised on appeal.          In conclusion, the

State requested that the ICA affirm Taylor’s conviction.

       The ICA held, “Based on [Stenger], we conclude that the

Circuit Court erred in failing to instruct the jury on Taylor’s

mistake-of-fact defense and that such error was not harmless

beyond a reasonable doubt.”      State v. Taylor, No. 30161 (App.

Feb. 29, 2010)(SDO) at 2.      The ICA therefore vacated the trial

court’s judgment of conviction and sentence and remanded the case

for a new trial on the charge of second-degree theft by

deception.     See id.

       The State now renews its request that this court overrule

Stenger.

III.    Discussion

       A.   The Mistake of Fact Defense

       Taylor was charged with Theft in the Second Degree, by

Deception, in violation of HRS § 708-830(2), which states, “A

person commits theft if the person . . . obtains, or exerts

control over, the property of another by deception with intent to

deprive the other of the property,” and in violation of HRS §

708-831(1)(b), the value of the property or services having

exceeded $300.     “Deception” is further defined, in relevant part,

in HRS § 708-800 (1993) as knowingly “[c]reat[ing] or

confirm[ing] another’s impression which is false and which the


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defendant does not believe to be true,” “[f]ail[ing] to correct a

false impression which the person previously has created or

confirmed,” or “[p]romis[ing] performance which the person does

not intend to perform or knows will not be performed. . . .”

     Mistake of fact can be a defense to Theft in the Second

Degree.   This defense is provided by statute:

           Ignorance or mistake as a defense.  In any prosecution for
           an offense, it is a defense that the accused engaged in the
           prohibited conduct under ignorance or mistake of fact if:
           (1) The ignorance or mistake negatives the state of mind
           required to establish an element of the offense; or
           (2) The law defining the offense or a law related thereto
           provides that the state of mind established by such
           ignorance or mistake constitutes a defense.

HRS § 702-218 (1993) (emphasis added).

     B.   State v. Stenger

     Our most recent case expounding on mistake of fact

instructional error is Stenger, 122 Hawai‘i 271, 226 P.3d 441.

In that case, Petitioner/Defendant-Appellant Angela Stenger was

charged and convicted of Theft in the First Degree for allegedly

taking $23,034 in welfare benefit overpayments.           122 Hawai‘i at

276, 226 P.3d at 446.     The State alleged that Stenger obtained

the overpayments by deceiving the Department of Human Services

(“DHS”) when she failed to report that her children were not

living with her and failed to report her income from substitute

teaching, from her surf school, and via inheritance.            122 Hawai‘i

at 275-76, 226 P.3d at 445-46.       At trial, Stenger requested a


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claim of right instruction on the basis that Stenger “believed

she was entitled to the benefits that she obtained and exerted

control over[.]”    122 Hawai‘i at 276, 226 P.3d at 446.         The trial

court denied the request.      Id.

     Stenger appealed her conviction to the ICA, arguing that the

trial court erred by refusing to give the requested claim of

right instruction and “fail[ed] sua sponte to give a mistake-of-

fact instruction[.]”     Id.   In other words, Stenger raised the

lack of an explicit mistake of fact instruction for the first

time before the ICA.     The ICA vacated the trial court’s judgment

of conviction and remanded Stenger’s case for a new trial.             122

Hawai‘i at 277, 226 P.3d at 447.          It held that the trial court

erred in denying Stenger’s requested claim of right instruction.

122 Hawai‘i at 276-77, 226 P.3d at 446-47.          It also held that

Stenger was not entitled to a mistake of fact instruction because

her claimed mistake concerned what she was required to report,

which the ICA considered to be a mistake of law and no defense.

122 Hawai‘i at 277, 226 P.3d at 447.

     On certiorari, Stenger pressed the mistake of fact issue,

arguing that the ICA gravely erred in concluding she was not

entitled to the instruction.       Id.     Stenger acknowledged that she

did not request an explicit mistake of fact instruction at trial,

but she argued that the evidence adduced at trial supported the

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instruction, and that the trial court’s failure to give the

instruction was not harmless beyond a reasonable doubt.             Id.

Stenger argued that she labored under the following mistake of

fact:   “if she believed she was complying with the reporting

requirements by virtue of the items she did report to DHS, then

she could not have ‘knowingly’ created or failed to correct a

false impression.”     122 Hawai‘i at 280, 226 P.3d at 450.

     A plurality of this court agreed with Stenger.           The

plurality concluded that the trial court’s “failure to instruct

on the defense of mistake of fact” was not harmless beyond a

reasonable doubt because there was a “reasonable possibility that

the jury, if provided with a separate mistake of fact

instruction, could have found that [Stenger] believed she

complied with the reporting requirements and, thus, did not

knowingly deceive DHS.”      122 Hawai‘i at 282-83, 226 P.3d at 452-

53 (following the analytical framework set forth in Nichols, 111

Hawai‘i 327, 141 P.3d at 974).

     In reaching this conclusion, the Stenger plurality first

favorably cited Locquiao, 100 Hawai‘i at 206, 58 P.3d at 1253 and

the commentary to HRS § 701-115 for the following proposition:
           With respect to defenses that negate penal liability, the
           defendant has the initial burden to adduce ‘credible
           evidence of facts constituting the defenses, unless those
           facts are supplied by the prosecution’s witnesses.’

122 Hawai‘i at 280, 226 P.3d at 450.

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     The plurality noted that Locquiao held that “where a

defendant has adduced evidence at trial supporting an instruction

on the statutory defense of ignorance or mistake of fact, the

trial court must, at the defendant’s request, separately instruct

as to the defense, notwithstanding that the trial court has also

instructed regarding the state of mind requisite to the charged

offense.”   122 Hawai‘i at 281, 226 P.3d at 451 (citing Locquiao,

100 Hawai‘i at 208, 58 P.3d at 1255) (emphasis added)).            This is

so, “no matter how weak, inconclusive, or unsatisfactory the

evidence [as to the defendant’s mistake of fact] may be.”             122

Hawai‘i at 281, 226 P.3d at 451.         See also State v. Stocker, 90

Hawai‘i 85, 94 n.10, 976 P.2d 399, 408 n.10 (1999) (“To meet his

[or her] initial burden of production [on a non-affirmative

defense, including mistake of fact], the defendant need only come

forward with “‘some’ evidence, ‘no matter how weak, inconclusive,

or unsatisfactory the evidence may be.’”)

     It was no accident that the plurality turned to Locquiao, a

case involving a mistake of fact instruction requested by the

defendant at trial but denied by the trial court.           Stenger argued

that she “did request a claim of right instruction, which is a

subspecies of mistake of fact, and, therefore, . . . that request

should be construed liberally to encompass a request for mistake

of fact.”   122 Hawai‘i at 281 n.13, 226 P.3d at 451 n.13.           The

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Stenger plurality construed Stenger’s mistake of fact instruction

to have been “requested” by the defendant at trial as

“encompass[ed]” in her request for a claim of right instruction.

122 Hawai‘i at 284, 226 P.3d at 454.

     The plurality explained that the claim of right defense is a

“particular type of mistake of fact that would be logically

encompassed under a general mistake of fact instruction.”             Id.

Specifically, a claim of right instruction would be appropriate

where the defendant asserts “(1) some form of pre-existing

ownership or possession of (2) specific property.”           122 Hawai‘i

at 285, 226 P.3d at 455.      Based on the evidence presented, the

Stenger plurality concluded that it was a mistake of fact defense

Stenger asserted at trial, not a claim of right defense.            Id.

     As Judge Kim emphasized in his concurrence, “I would contend

that . . . the defense in the instant case did essentially

request a jury instruction on the mistake of fact defense when it

mistakenly requested one on claim of right. . . . In effect, the

defense had the theory right, but the specific instruction wrong,

and the trial court, while correctly recognizing the latter,

mistakenly failed to recognize the former[.]”          122 Hawai‘i at

296, 226 P.3d at 466 (Kim, J., concurring) (emphasis added).                One

of the dissents recognized that, had Stenger explicitly requested

the mistake of fact jury instruction, under Locquiao, the trial


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court would have been required to so instruct.          122 Hawai‘i at

300 n.1, 226 P.3d at 470 n.1 (Nakayama, J., dissenting)

     The Stenger plurality could have expressly stated that a

trial court has a duty to correct an erroneous request for a jury

instruction where the theory of the defense clearly implicates

another jury instruction.      See State v. Faria, 100 Hawai‘i 383,

390, 60 P.3d 333, 340 (2002) (“[F]aced with inaccurate or

incomplete instructions, the trial court has a duty to, with the

aid of counsel, either correct the defective instructions or to

otherwise incorporate it into its own instructions.”); State v.

Vanstory, 91 Hawai‘i 33, 42, 979 P.2d 1059, 1068 (1999) (“If the

instructions requested by the parties are inaccurate or

incomplete but are necessary ‘in order for the jury to “have a

clear and correct understanding of what it is that they are to

decide[,]”’ then the trial court has the duty either to correct

any defects or to fashion its own instructions.”) (citing State

v. Okumura, 78 Hawai#i 383, 411, 894 P.2d 80, 108 (1995)); State

v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998) (same).

     Upon review, then, Stenger actually determined that (1) a

trial court has a duty to properly instruct the jury on mistake

of fact in the face of a requested but erroneous jury instruction

on claim of right; and (2) the mistake of fact jury instruction

was further required to be given because the defendant

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“requested” it and raised some evidence in support of the

defense.   Read this way, Stenger did not actually disrupt our

instructional error precedent to the extent feared by the dissent

in that case.   See 122 Hawai‘i at 306, 226 P.3d at 476 (Nakayama,

J., dissenting) (interpreting Stenger to require a trial court to

“instruct the jury sua sponte as to all defense instructions that

may possibly be implicated by the facts”).         Read this way, it

also would not have been necessary for Chief Justice Moon to

propose an alternative test, which has since been inconsistently

adopted by the ICA in appeals raising instructional error.             See

122 Hawai‘i at 298, 299, 226 P.3d at 468, 469 (Moon, C.J.,

dissenting) (“[T]he trial court has a limited duty to sua sponte

instruct the jury on a particular defense if (1) it appears that

the defendant is relying on such a defense, or (2) if there is

substantial evidence supportive of such a defense and the defense

is not inconsistent with the defendant’s theory of the case.”)

(citing People v. Barton, 906 P.2d 531, 535 (Cal. 1995)).

Rather, as to requested jury instructions, Stenger reaffirmed the

trial court’s duty to correct erroneously requested jury

instructions, and reaffirmed that a defendant is entitled to a

requested jury instruction on a defense when he presents some

evidence going to the defense.




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     C.     State v. Nichols

     Thus, Stenger does not stand for the proposition that it has

become cited for:      that a trial court errs in failing to sua

sponte give a jury instruction unrequested by the defendant at

trial; Nichols, however, does.         111 Hawai‘i 327, 141 P.3d 974.

Thus, Nichols is actually dispositive of Taylor’s appeal, and we

take the opportunity to revisit that case.            In Nichols, the

defendant (“Nichols”) was charged with and convicted of

Terroristic Threatening in the First Degree in violation of HRS §

707-716(1)(c) (1993).       111 Hawai‘i at 328-29, 141 P.3d at 975-76.

     On certiorari, Nichols argued, inter alia, that the trial

court erred in not instructing the jury that they could compare

the “relevant attributes” between him and the complaining witness

(a police officer) to determine whether the complaining witness

objectively, reasonably felt threatened.           111 Hawai‘i at 329, 141

P.3d at 976.     As with Taylor, the error in Nichols was raised for

the first time on appeal, as Nichols had not requested the

instruction at trial, and no such instruction was given to the

jury.     111 Hawai‘i at 333, 339 n.7, 141 P.3d at 980, 986 n.7.

     In reversing Nichols’ conviction, this court held
             [A]lthough as a general matter forfeited assignments of
             error are to be reviewed under the [Hawai‘i Rules of Penal




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            Procedure (“HRPP”)] Rule 52(b) [7] plain error standard of
            review, in the case of erroneous jury instructions, that
            standard of review is effectively merged with the HRPP Rule
            52(a) [8] harmless error standard of review because it is the
            duty of the trial court to properly instruct the jury. As a
            result, once instructional error is demonstrated, we will
            vacate, without regard to whether timely objection was made,
            if there is a reasonable possibility that the error
            contributed to the defendant’s conviction, i.e., that the
            erroneous jury instruction was not harmless beyond a
            reasonable doubt.

111 Hawai‘i at 337, 141 P.3d at 984.         We stated the new “merger”

rule “flow[ed] from this court’s holding in Haanio9 that the duty

to instruct the jury ultimately lies with the trial court[.]”

111 Hawai‘i at 335-36, 141 P.3d at 982-83 (footnote omitted).

            We reiterate that it is the trial court’s duty to

properly instruct the jury.        However, in the case of a jury

7
      Under HRPP Rule 52(b) (1977), “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the
attention of the court.”

8
      Under HRPP Rule 52(a) (1977), “Any error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded.”

9
      Upon further review, however, State v. Haanio, 94 Hawai‘i 405, 16 P.3d
246 (2001), did not necessarily compel the holding in Nichols, which Stenger
adopted. Stenger, 122 Hawai‘i at 281, 226 P.3d at 451. Haanio held “that
trial courts must instruct juries as to any included offenses when ‘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[.]’”
Haanio, 94 Hawai‘i at 413, 16 P.3d at 254. This is so “despite any objection
by the defense, and even in the absence of a request from the prosecution.”
Id. In other words, “trial courts are duty bound to instruct juries ‘sua
sponte . . . regarding lesser included offenses’ . . . having a rational basis
in the evidence.” 94 Hawai‘i at 415, 16 P.3d at 256 (citation omitted).
      There is a clear difference between requiring sua sponte jury
instructions on lesser included offenses versus defenses, in terms of the
burden upon the trial court, and in terms of the effect upon trial strategy.
See, e.g., State v. Auld, 114 Hawai‘i 135, 148, 149, 157 P.3d 574, 587, 588
(App. 2007) (“A rule requiring the court to give a self-defense instruction
even if deliberately not requested by the defense would put the trial court in
a difficult position . . . Permitting a defendant to exercise a measure of
strategic control over whether the jury is instructed on self-defense . . .
would simply allow the defendant to focus the jury’s attention. . . .”)
(Nakamura, J., concurring and dissenting).

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instruction that is not requested at trial, the omission of which

is later denominated as error for the first time on appeal, the

Nichols’ “merger” holding should also be clarified.

     Upon further examination of this case, it appears that the

Nichols court, despite its “merger” holding, continued to engage

in a two-step, plain-error-then-harmless error review in

analyzing instructional error.       Nichols observed that the

defendant must first overcome the presumption that the

instructions as given were correct.        111 Hawai‘i at 337 n.6, 141

P.3d at 984 n.6.    Once instructional error is demonstrated, the

defendant must then show that that there was a reasonable

possibility that the erroneous jury instruction contributed to

his or her conviction, i.e., that the instructional error was not

harmless beyond a reasonable doubt.        See 111 Hawai‘i at 337, 141

P.3d at 984.

     The first step in the Nichols analysis was our determination

that “the circuit court’s failure to give a ‘relevant attributes’

instruction was plain error[.]”       111 Hawai‘i at 338, 141 P.3d at

985 (emphasis added).     This was so because under State v.

Valdivia, the failure to instruct on relevant attributes in a

terroristic threatening case is reversible error in any event,

whether or not the relevant attributes instruction is requested

(as it was in Valdivia) or unrequested (as it was in Nichols).


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95 Hawai‘i 465, 479, 24 P.3d 661, 675 (2001) (concluding that the

omission of an instruction on relevant attributes was error

because “the jury . . . should have been instructed that it could

consider relevant attributes of both the defendant and the

[complaining witness] in determining whether the [complaining

witness’s] fear of bodily injury . . . was objectively reasonable

under the circumstances. . . .”)

     The next step in the Nichols analysis was our determination

that “there is a reasonable possibility that the error

contributed to Nichol’s conviction, i.e., the error was not

harmless beyond a reasonable doubt.”        111 Hawai‘i at 338, 141

P.3d at 985 (emphasis added).       Thus, it would appear that, rather

than “merging” the two standards of review, the Nichols court

retained the two-step plain-error-then-harmless-error inquiry.

     Thus, in the case of a mistake of fact jury instruction that

is not requested and not given at trial, the omission of which is

denominated as error for the first time on appeal, we clarify

that the plain error standard continues to apply.           Plain error

exists “[i]f the substantial rights of the defendant have been

affected adversely[.]”     State v. Kikuta, 125 Hawai‘i 78, 95, 253

P.3d 639, 656 (2011).     This court “will apply the plain error

standard of review to correct errors [that] seriously affect the

fairness, integrity, or public reputation of judicial


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proceedings, to serve the ends of justice, and to prevent the

denial of fundamental rights.”          Id. (citations omitted).

       In the case of a jury instruction on mistake of fact that is

not requested by the defense and not given by the trial court,

plain error affecting substantial rights exists if the defendant

had met his or her initial burden at trial of adducing credible10

evidence of facts constituting the defense (or those facts are

supplied by the prosecution’s witnesses).            See Stenger, 122

Hawai‘i at 280, 226 P.3d at 450 (citing Locquiao, 100 Hawai‘i at

206, 58 P.3d at 1253 and the Commentary to HRS § 701-115).                See

id.

       We draw our holding from HRS § 701-115(2) and its

Commentary.      HRS § 701-115 (1993) provides:


10
       By “credible” evidence we mean evidence “offering reasonable grounds for
being believed.” Webster’s Ninth New Collegiate Dictionary 305 (1988). The
Dissent defines “credible” to mean “not incredible, that is, not ‘too
extraordinary and improbable to be believed[.]’” Dissent at n.11 (citing
Merriam Webster’s Collegiate Dictionary 590 (10th ed. 1993)). Respectfully,
we have already opined that evidence that is “not credible,” as Taylor’s was,
could merely be “plausible (and, therefore, not incredible),” just not
entirely believable.” State v. Maelega, 80 Hawai#i 172, 178 n.9, 907 P.2d
758, 764 n.9 (1995).
       We are aware that “credibility” is usually associated with subjective
believability. See, e.g., State v. West, 95 Hawai#i 452, 464, 24 P.3d 648,
660 (2001) (“[A]ppellate courts must objectively review all the evidence and
avoid commenting on its subjective believability, especially the credibility
of the witnesses.”) Appellate courts are, however, sometimes required to
employ credibility determinations. For example, “[w]hen an appellate court
reviews the sufficiency of the evidence, it examines whether there was
substantial evidence to support the conclusion of the trier of fact. . . .
Substantial evidence as to every material element of the offense charged is
credible evidence which is of sufficient quality and probative value to enable
a person of reasonable caution to support a conclusion.” State v. Gomes, 117
Hawai#i 218, 226, 177 P.3d 928, 936 (2008) (citation omitted). Thus, in the
current context, we examine whether the defendant met her initial burden to
adduce evidence with reasonable grounds for being believed.

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              Defenses. (1) A defense is a fact or set of facts which
              negatives penal liability.
              (2) No defense may be considered by the trier of fact unless
              evidence of the specified fact or facts has been
              presented. If such evidence is presented, then:
              (a) If the defense is not an affirmative defense, the
              defendant is entitled to an acquittal if the trier of fact
              finds that the evidence, when considered in the light of any
              contrary prosecution evidence, raises a reasonable doubt as
              to the defendant’s guilt; or
              (b) If the defense is an affirmative defense, the defendant
              is entitled to an acquittal if the trier of fact finds that
              the evidence, when considered in light of any contrary
              prosecution evidence, proves by a preponderance of the
              evidence the specified fact or facts which negative penal
              liability.
              (3) A defense is an affirmative defense if:
              (a) It is specifically so designated by the Code or another
              statute; or
              (b) If the Code or another statute plainly requires the
              defendant to prove the defense by a preponderance of the
              evidence.

     The Commentary to HRS § 701-115 provides, in full:
                    The Code establishes two classes of defenses. As to
              both, it places an initial burden on the defendant to come
              forward with some credible evidence of facts constituting
              the defense, unless, of course, those facts are supplied by
              the prosecution’s witnesses.
                    As to the burden of persuasion, two different rules
              are codified. In the case of defenses which are not
              affirmative, the defendant need only raise a reasonable
              doubt as to the defendant’s guilt. The other side of the
              coin is that the prosecution must prove beyond a reasonable
              doubt facts negativing the defense. The prosecution in fact
              does this when the jury believes its case and disbelieves
              the defense.
                    In the case of affirmative defenses, the burden on the
              defendant increases. Now the defendant must prove by a
              preponderance of the evidence facts which negative the
              defendant’s penal liability. Subsection (4) defines
              “affirmative defense,” making it clear that this type of
              defense needs special legislative prescription. Unless the
              Legislature has made a particular defense affirmative, the
              defendant’s burden is only to raise a reasonable doubt. 11

11
      The dissent states that the majority “preemptively shifts the burden of
persuasion to the defendant at a point in the litigation where the defendant
is only required to satisfy the burden of production.” Dissent at V.B.
However, the commentary actually states that the defendant must “come forward
with some credible evidence of facts constituting the defense,” and the phrase
“come forward” clearly elaborates upon the statute’s requirement that the
defendant “present[]” “evidence of the specified fact or facts” before the
                                                            (continued . . . )

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      Contrary to the Dissent’s assertion, Maelega, 80 Hawai‘i

172, 907 P.2d 758, did not invalidate the Commentary to HRS §

701-115.    Dissent at VI.A.      In that case, the defendant

(“Maelega”), who was tried for murder, requested a jury

instruction on extreme mental and emotional disturbance (“EMED”).

80 Hawai‘i at 174, 907 P.2d at 760.          We observed that the

requirement in State v. Nobriga, 10 Haw. App. 353, 359, 873 P.2d

110, 113 (1994), that the defendant come forward with credible

evidence was inconsistent with this court’s holding in State v.

Pinero, 75 Haw. 282, 304, 859 P.2d 1369, 1379 (1993), that even

“weak, inconclusive, or unsatisfactory” evidence supports the

giving of a defense instruction.           That much remains true as to

requested defense instructions, which Maelega’s was.

      The primary issue in Maelega, however, was not the meaning

of the Commentary but whether the circuit court’s modified

instruction on the defendant’s requested EMED defense, which

included language drawn from the Commentary, impermissibly


      (. . . continued)
trier of fact considers a defense. In other words, “credible evidence” in the
Commentary refers to the defendant’s burden of production, not persuasion. In
fact, the next paragraph in the Commentary states the “burden of persuasion”
is identified as belonging to the State or to the defendant, depending upon
whether the defense is an affirmative or non-affirmative defense. Thus, the
Commentary still provides helpful guidance as to the defendant’s burden of
coming forward with credible evidence to constitute a defense. Contrary to
the Dissent’s assertion, this interpretation of the Commentary to HRS § 701-
115 is still viable. Dissent at VI.A. As recently as Locquiao and Stenger,
we continued to favorably cite to the Commentary to HRS § 701-115. See
Locquiao, 100 Hawai#i at 206, 58 P.3d at 1253; Stenger, 122 Hawai#i at 280, 226
P.3d at 450.

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shifted the burden of proof onto the defendant.            Maelega, 80

Hawai‘i at 176, 907 P.2d at 762.            The modified instruction read

as follows:
            The defense of extreme mental or emotional disturbance
            places the initial burden on the defendant to come forward
            with some credible evidence of fact constituting a defense
            unless those facts are supplied by the prosecution’s
            witnesses. If this occurs, the prosecution must then prove
            beyond a reasonable doubt that the defendant was not at the
            time of the offense under the influence of extreme mental or
            emotion [sic] disturbance for which there is a reasonable
            explanation.

80 Hawai‘i at 176, 907 P.2d at 762 (emphasis in original).

       We held that this instruction “impliedly instructed the jury

that the burden under HRS § 701-115(2) was a question of fact for

the jury to decide,” i.e., that the jury was to decide whether

Maelega came forward with some credible evidence of facts

constituting the EMED defense.         80 Hawai‘i at 177, 907 P.2d at

763.    We held that the circuit court should not have instructed

the jury on Maelega’s “burden of production. . . .”            Id.   Rather,

the jury should have been instructed only as to the State’s

ultimate burden of persuasion to negative Maelega’s EMED defense

beyond a reasonable doubt.       Id.

       We stated that it was not the jury’s job to “conclude[] that

Maelega’s purported defense was not credible,” because “it is not

the province of the jury to second guess the judge’s decision to

instruct on EMED manslaughter. . . .”            80 Hawai‘i at 178 n.9, 179

n.10, 907 P.2d at 764 n.9, 765 n.10.            Rather, we held that

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whether the defendant’s burden of production “has been met is a

question that should be decided by the trial court as a matter of

law.”   80 Hawai‘i 179 n.10, 907 P.2d at 765 n.10; see also 80

Hawai#i at 177 n.8, 907 P.2d at 763 n.8 (characterizing the trial

court’s determination that a defendant has met his initial burden

of producing “some credible evidence of facts constituting the

defense” as calling for a “legal conclusion.”).           In Maelega, we

believed that the circuit court had, by giving the EMED

instruction to the jury, “implicitly acknowledged that, based on

the record, a reasonable juror could harbor a reasonable doubt as

to whether Maelega acted while under an extreme emotional

disturbance for which there was a reasonable explanation when he

killed [the victim.]”     80 Hawai‘i at 177, 907 P.2d at 763.

Therefore, the role of the trial court in deciding to give a jury

instruction on a requested non-affirmative defense is to resolve

a question of law based on an objective juror standard.

     Synthesizing and applying HRS § 701-115, its Commentary, and

Maelega in the context of this case, we hold that, in the case of

an unrequested mistake of fact jury instruction denominated as

error for the first time on appeal, HRS § 701-115(2) and its

accompanying Commentary place the burden of production on the

defendant to present evidence of the specified fact or facts

going to the defense.     In other words, the defendant must have


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come forward at trial with credible evidence of facts

constituting the defense, unless those facts were supplied by the

prosecution’s witnesses.        Further, “credible evidence” in this

context means that the circuit court should have concluded, based

on the record that existed at trial, that the evidence “offered

reasonable grounds for being believed,” i.e., that “a reasonable

juror could harbor a reasonable doubt” as to the defendant’s

guilt, and should have given the unrequested mistake of fact jury

instruction.     Failure to give the mistake of fact jury

instruction under these circumstances constitutes plain error.12

      This is so, because a defense like mistake of fact is

capable of “negativ[ing] the state of mind required to establish

an element of the offense,” thus capable of avoiding conviction.

HRS § 702-218 (1993); see also HRS § 701-114(1)(b) (1993) (“[N]o

person may be convicted of an offense unless the following are

proved beyond a reasonable doubt: . . . The state of mind

required to establish each element of the offense[.]”).

      This court may notice as plain error the omission of a

mistake of fact jury instruction if it appears that the defendant


12
      In this regard, we disagree with the Dissent that weak, inconclusive, or
unsatisfactory evidence going to a particular defense is always “apparent” to
the trial court in a bench or jury trial. Dissent, Section V.A. It is more
likely the case that weak, inconclusive, or unsatisfactory evidence would
become “apparently” relevant to a particular defense when the defendant
requests the defense and the trial court’s attention is drawn to such evidence
in the record. Absent such a request, due to its nature, weak, inconclusive,
or unsatisfactory evidence relevant to an unstated defense may not necessarily
take on any apparent significance during trial.

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has come forward with credible13 evidence going to the defense

that the jury should have been able to consider, as such an error

“seriously affects the fairness, integrity, or public reputation

of judicial proceedings,” and it would “serve the ends of

justice” and “prevent the denial of fundamental rights” to

address such an omission.        Kikuta, 125 Hawai‘i at 95, 253 P.3d at

656.    In such an instance, where the omission of the mistake of

fact jury instruction constitutes plain error, it shall be a

basis for reversal of the defendant’s conviction only if an

examination of the record as a whole reveals that the error was

not harmless beyond a reasonable doubt.

       D.   Taylor’s Appeal

       Turning to Taylor’s appeal, the absence of a jury

instruction on mistake of fact was not plain error, because

Taylor had not met her initial burden of adducing credible14

evidence of facts constituting the defense, and those facts were

not supplied by the prosecution’s witnesses.            Taylor’s testimony

that she believed Roth and Serna Lara were attorneys after she

met them through Pamela Merch at their Queen Street office and

worked for them in a clerical capacity for a year was not

credible15, in light of the evidence, as summarized above.
13
       See supra note 10.

14
       See supra note 10.
15
       See supra note 10.

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Therefore, the omission of the mistake of fact jury instruction

at trial was not plain error.       Even assuming arguendo that it

was, there is no reasonable possibility that the omission of a

mistake of fact instruction contributed to Taylor’s conviction.

In other words, the omission of the mistake of fact jury

instruction was harmless beyond a reasonable doubt.

     We therefore reverse the ICA’s March 27, 2012 Judgment on

Appeal, entered pursuant to its February 29, 2012 Summary

Disposition Order, which vacated the October 7, 2009 Judgment and

Conviction of the Circuit Court of the First Circuit and remanded

this case for a new trial.      Taylor’s Judgment of Conviction and

Sentence is affirmed.

Kimberly Tsumoto Guidry                  /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Phyllis J. Hironaka                      /s/ Sabrina S. McKenna
for respondent
                                         /s/ Colette Y. Garibaldi




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