State v. Coyle

Jan 29, 1990
NO. 13614; NO. 13673
Reporters:
Before:
Lum

*166OPINION OF THE COURT BY

LUM, C.J.

In these two cases, Defendant-Appellant John Deeter and Defendant-Appellant Michael A. Coyle each appeals from his conviction of the crime of Abuse of Family and Household Members, Hawaii Revised Statutes (HRS) § 709-906 (1985). Each had a non-jury trial, was charged and convicted only under HRS § 709-906. On appeal each contends that the judge’s finding that a mutual affray occurred is a defense to the crime. We disagree.

Although HRS § 707-712(2) (1985) on Third Degree Assault does provide a defense which mitigates that crime from a misdemeanor to a petty misdemeanor when the assault is committed during a fight or scuffle entered into by mutual consent,1 no similar provision is made in HRS § 709-906, Abuse of Family and Household Members. Mutual affray, therefore, is not a defense to the crime of which Appellants were convicted, Abuse of Family and Household Members, HRS § 709-906.

We do not decide the contested issue of whether Third Degree Assault committed in a mutual affray, HRS § 707-712(2), is a lesser included offense of the charged Abuse of Family and Household Members, HRS § 709-906, because a decision on that issue is not relevant to a determination of the present cases. Being guilty of a lesser included offense is not a defense to a conviction of the greater offense. State v. Sneed, 68 Haw. 463, 464, 718 P.2d 280, 281 (1985).

The convictions are affirmed.

Phyllis Hironaka, Deputy Public Defender {James Tagupa, Deputy Public Defender, and Richard W. Pollack, Public Defender, on the briefs) for Defendants-Appellants. Vickie L. Silberstein (Wallace W. Weatherwax on the brief in No. 13673), Deputy Prosecuting Attorneys, for Plaintiff-Appellee.

Notes

HRS § 707-712(2) reads: “Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.”