Lead Opinion
Opinion of the Court by
Wе hold that (1) an instruction on Hawaii Revised Statutes (HRS) § 703-309 (1993) (parental discipline defense),
Accordingly, the June 8, 2010 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its May 18, 2010 memorandum opinion,
We emphasize that our holding in no way condones the use of illegal force against minors. As acknowledged by the legislature, “ ‘the line between physical abuse and appropriate parental discipline is a very subjective one. What one parent considers discipline may seem abusivе to another.’ ” State v. Matavale,
I.
The following essential matters, some verbatim, are from the record and the submissions of the parties.
On October 9, 2007, Respondent was charged by written complaint with Assault in the Second Degree, HRS § 707-711(1) (Supp.2007).
Complainant’s Testimony
Respondent’s step-son Justin (Complainant) was fourteen years old at the time of the incident. As of that date, he had been living with his mother (Mother) and Respondent for approximately five years, and he and Respondent “never really got along.” On
When Respondent left the room, Complainant “slammed the door” because he “was mad[,]” thinking he was about to lose the bet since Respondent “works with carpet” and he “was pretty sure” Respondent “could get [the stain] out.” Immediately after, Respondent “slammed the door back open, and ... pushed [Complainant]” and he “fell [ ] backwards into the glass door.” When Complainant got up, Respondent “pushe[d Complainant] back down.” Complainant then “grabbed the crutch” that had fallen on the floor. According to Complainant, he did so because he knew that Respondent could not run or walk without the crutches and Complainant “thought he could get away” by grabbing them.
Complainant explained that as he was holding the crutch “sideways” and about “to run on the side of [Respondent,]” Respondent pushed the crutch toward [Complainant] and punched [him] in the face five times[.]” When Complainant “got to his knees and covered [his] head” because his “face hurt,” Respondent “punched [him] on the back of [his] head [] two or three times.” When asked to describe the force used, Complainant stated that the punches were “hard enough to break [his] nose” and that the same amount of force was used by Respondent when punching the back of Complainant’s head.
Complainant subsequently noticed that his nose was bleeding and that his face was swollen. His nose stopped bleeding after about half-an-hour and healed in about a week. Complainant also stated that his teeth were chipped, and he had them fixed by his dentist. When Mother came home, he related what happened to her. Complainant, Cousin, and Mother “left the home and went “straight to K-Mart[,]” then “to church[,]” and after church, to the hospital where Complainant was treated for his injuries.
When Complainant was asked whether he had “ever aet[ed] like [he] was going to hit [Respondent], he responded, “I don’t think so[,]” or “[i]f I did, I didn’t mean to.” He explained, “I may have looked like I did, but I didn’t actually do it.” According to Complainant, he had tried to move past Respondent while holding the crutch, “but never towards him.” However, Complainant conceded on cross-examination that “when he stood up with [the] crutch, ... [he] figured that [Respondent] thought [Complainant was] going to whack him with it.”
Cousin’s Testimony
At trial, Cousin testified that he was thirteen years old at the time of the incident and fourteen years old at the time of trial. Cousin related that he and Complainant were watching video programs when Respondent came in and told Complainant to feed the dog. After Complainant did so, Respondent came back into the room and “start[ed] complaining about [a] dog stain on the ground.” Cousin stated that when Respondent told Complainant to clean it, Complainant said, “[Y]ou can since [Respondent] want[ed] to make a bet with [Complainant.]” Respon
After Respondent left the room, Complainant “slam[med] the door on [Respondent].” Respondent then opened the door, “limp[ed] in kind of quiсkly” and “lunge[d] at [Complainant.]” Complainant was “tackled into the [] sliding door” and the jalousies fell.” As Complainant was trying to get off the sliding door, Respondent “hit[ ] him about four or five times in the face.” Complainant “put[ ] his hands over his head ... defensively[,]” and Respondent hit Complainant in the head “[m]aybe fifteen times.”
Cousin related that Complainant then stood up, grabbed a crutch from the floor, and held it in a defensive manner. Respondent then told Complainant that he “should use the crutch against him and [] fight[,]” but Complainant “didn’t do anything”; just “kind on like backing off.” After the incident, Cousin noticed that Complainant’s “face was swelled,” and “teeth were chipped, and Complainant also “had a bleeding nose.”
Respondent’s Testimony
Respondent had been married to Mother for six years and met Complainant six years prior to trial, when Complainant was about eight years old. At the time of the incident he was living with Complainant, Mother, and Complainant’s grandmother. He was the father figure in Complainant’s life and Complainant called him “dad,” and Respondent referred to Complainant as his “son.” According to Respondent, he and Complainant had a “[f]ather and son relationship” and did “all kinds of stuff’ together, including “fishing, camping, from box cars to go-carts, to even talking about how to drive a regular ear.” Respondent related that during the course of their relationship, he would sometimes have to reprimand Complainant.
Prior to the incident, Respondent “popped [his] Achilles” while playing basketball and went to the emergency room to be treated. Following surgery, Respondent’s leg was wrapped in a cast which went from his hip to the ball of his foot. As a result, he was unable to place his toes on the ground, put any weight on his leg, or keep his balance and therefore, needed crutches to move around. Respondent explained that if he werе to put any weight on his foot, he would stretch his Achilles tendon and his foot was already very tender.
As to the incident, Respondent explained that he entered the game room and asked Complainant to complete some chores, including feeding the dog and cleaning the dog’s “mess.” Complainant asked Respondent to “give [him] a few minutes,” which Respondent did. After Complainant fed the dog, Respondent asked him to put away the dog food. Complainant then got “pretty mad and started slamming stuffl.]” Around that time, Respondent noticed a stain on the ground, which Respondent described as dog “diarrhea.” He indicated that when he asked Complainant to clean it up, Complainant answered, “I can’t get it up.” When he told Complainant, “[Y]ou can,” Complainant responded, “[Y]ou wanna bet?” Respondent told the Complainant that he would be grounded for a year if Respondent was able to remove the stain. Complainant then stated that if he won the bet, “he could kick [Respondent] in the leg” that had been operated on. When Respondent left the room to obtain supplies to clean the stain, Complainant “lost it” because Respondent normally grounded Complainant for the “whole length.” Complainant then slammed the sliding glass door.
Respondent related when Complainant slammed the glass door it made him “upset because [Respondent] told [Complainant] many times [not to slam the door]” and he felt like Complainant had done that to “get back” at him. At that time, Respondent re entered the game room and called Complainant but Complainant did not answer or look at him. When he called Complainant a second time, Complainant again did “[n]othing” and “ignor[ed him].” After being ignored again, Respondent went up to Complainant and pushed him with two hands on his shoulders. Because Respondent “was off-balance,” his crutches fell from under his arms, and as a result, Respondent “pushed [Com
According to Respondent, Complainant then picked up Respondent’s crutch with two hands, came up off the floor, and swung the crutch at him. Respondent “blocked [the swing] and [ ] hit him” two times, but was not aiming for Complaint’s face. Respondent explained that he punched Complainant “to try to make him let go of th[e] crutch” and was not “aiming anywhere[,]” but “just reacting!.]” Respondent did not notice any injuries to Complainant’s face, chipped teeth, or bleeding. After he struck Complainant, Respondent talked to him calmly and stated, “[W]hat makes you think you could stand up to dad, you know. Don’t do that, you know.”
II.
In settling jury instructions, defense counsel asserted that Respondent had struck Complainant in self-defense and that Respondent was also entitled to a jury instruction on the parental discipline defense because the defense had “raised or provided a scintilla of evidence that would require [the] instruction [to] be given.” Petitioner/Plaintiff-Appellee State of Hawaii (Petitioner) argued that Respondent was precluded from asserting the parental discipline defense because Respondent had caused substantial bodily injury to Complainant. Defense counsel conceded that Respondent had caused Complainant substantial bodily injury, but argued that the issue of whether or not the force used against Complainant was designed to cause or known to create a risk of causing substantial bodily injury was a question for the jury.
The court declined to give an instruction on the parental discipline defense on the ground that the force used against Complainant had resulted in substantial bodily injury. The court stated that “in this particular easе under [the] circumstances, there’s no dispute that the force caused or resulted in substantially [sic] bodily injury, which is defined by statute[,] which includes the fracture[, s]o the [e]ourt will refuse [the parental discipline instruction] over objection by [Respondent].”
III.
A
On appeal to the ICA, Respondent argued that the court erred in failing to instruct the jurors (I) on the parental discipline defense and (2) on whether the assault in the third degree occurred during the course of a fight or scuffle entered into by mutual consent, i.e., mutual affray. Respondent maintained that a defendant is “entitled to an instruction on any defense or theory of the defense supported by the evidence, ‘no matter how weak, unsatisfactory, or inconclusive.’ ” (Quoting State v. Auld,
(1) [the defendant] was a parent, guardian, or other person as described in HRS § 703-309(1); (2) [the defendant] used force against a minor for whose care and supervision he was responsible; (3) his [or her] use of force was with due regard to the age and size of the recipient and reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of misconduct; and (4) the force used was not designed to cause, or known to create a risk of causing, substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
State v. Miller,
As to the first element of the parental discipline defense, Respondent asserted that “[t]he scope of HRS § 703-309 extends to, ‘a parent or guardian or other person similarly responsible for the general care and supervision of a minor[.]” According to Respondent, “it was undisputed that [he] was [Complainant’s] step-father ... and that he basically raised [Complainant] as his own son.”
As to the second element, Respondent maintained that it was undisputed that he, as Complainant’s step-father, “was responsible for supporting, caring for and disciplining [Complainant].” Respondent pointed out that in fact, on the date of the incident,
As to the third element, HRS § 703-309(l)(a), Respondent asserted that “there was evidence that [Respondent’s] use of force was with due regard to [Complainant’s] age and size and was reasonably related to the purpose of safeguarding or promoting [Complainant’s] welfare, including the prevention or punishment of misconduct.” Respondent noted that at the time of the incident, Complainant was “5' 10" to 6' tall and weighed around 160 pounds” and Respondent “was 5' 7" tall and weighed approximately 185 to 190 pounds[].”
With respect to the fourth element, HRS § 703~309(l)(b), regarding whether the force used was designed to cause or known to create a risk of substantial bodily injury, Respondent argued that “HRS § 703-309 prohibits not the result of the force, but the degree of force which is employed.” (Citing Miller,
As to the first prong of HRS § 703-309(l)(b), Respondent contended that there was testimony that the force used was not designed to cause substantial bodily injury as evidenced by his testimony that he had hit Complainant as a “reaction” to Complainant swinging a crutch at him, and not with a design to cause substantial bodily injury. As to the second prong, Respondent contended that it was “questionable whether he would have known that [by hitting Complainant], he was creating a risk of causing [Complainant] substantial bodily injuryt,]” as evidenced by the testimony of Complainant’s treating physician that “the nose bone was easily broken because it was a thin bone.” According to Respondent, he “did not realize that the degree of force he used could so easily result in a broken nose.”
In connection with his second argument, Respondent contended that his description of the incident at trial “provided an evidentiary basis by which the jury could have found that the Assault in the Third Degree occurred during a fight or scuffle entered into by mutual consent, i.e. mutual affray.” Respondent asserted that such an instruction was supported by his testimony that he had pushed Complainant, that Complainant then picked up a crutch and swung it at him, and only then did he react by hitting Complainant. Respondent maintained that he was entitled to an instruction on mutual affray “so long as there was any support in the evidence for an instruction on the issue[,]” even if such an instruction “were deemed inconsistent with a defense of self-defense[.]”
B.
In response to Respondent’s argument regarding the parental discipline instruction, Petitioner contended that “by virtue of the nature of [Complainant’s] injuries caused by [Respondent’s] attaek[,]” Respondent “was per se unable to support the parental discipline defense which prosсribes force sufficient to cause serious bodily injury including fracture” under HRS § 703-309(l)(b). Although the previous argument was the only theory raised by Petitioner at trial to support its argument that Respondent was not entitled to a parental discipline defense instruction, Petitioner also argued on appeal that the force used was not reasonably propor
In further support of its argument that the force used in this case was not reasonably proportional to Complainant’s misconduct, Petitioner cited to State v. Crouser,
Finally, with respect to Respondent’s argument regarding a mutual affray instruction, Petitioner urged that because no objection was made by Respondent at trial, this court should notice the error for “plain error,” only if “ ‘[the] erroneous instruction affected the substantial rights of [the] defendant.’ ” (Quoting State v. Pauline,
C.
1.
On May 18, 2010, the ICA filed its Memorandum Opinion. As to Respondent’s argument that he was entitled to an instruction on the parental discipline defense, the ICA majority determined that the question was not, as the court concluded, whether the force used resulted in substantial bodily injury, but whether the force “was ‘designed to cause or known to create a risk of causing’ substantial bodily injury. HRS § 703-309(1)(b).” State v. Kikuta, No. 29445,
The ICA majоrity determined that “[t]here is a question of fact as to whether [Respondent’s] force against Complainant was designed to cause or known to create a risk of causing substantial bodily injury.” Id. The majority reasoned that the point during the incident at which Respondent broke Com
2.
The ICA dissent maintained that, as to the parental discipline instruction, there was insufficient evidence that the force employed by Respondent against Complainant (1) “was ‘reasonably related to the purpose of safeguarding or promoting the welfare of [Complainant]’ ” or (2) “was not ‘known to create a risk of causing substantial bodily injury, extreme pain or mental distress, or neurological damage.’” Id. at *11 (Nakamura, C.J., dissenting). As to (1), the dissent stated that Respondent’s “acts of punching [Complainant] multiple times in the face and breaking his nose cannot be justified as being for the purpose of safeguarding or promoting [Complainant’s] welfare.” Id. According to the dissent, Respondent “did not testify that his use of force was done with the intent to safeguard or promote the welfare of [Complainant], or even to punish [Complainant] for his misconduct or prevent future misconduct. Instead, [Respondent] simply testified that he was ‘upset.’ ” Id.
As to (2), the dissent stated that even if the nature of the conduct, and not the result of the conduct, is determinative in assessing whether the force used is permissible under HRS § 703-309(1)(b), “the nature of his conduct — a minimum of two punches to the face of [Complainant] — was clearly the type of conduct known to create a risk of causing substantial bodily injury, extreme pain, mental distress, or neurological damage.” Id. at *12.
As to an instruction on mutual affray, the dissent stated that “mutual affray is ‘a fight or scuffle entered into by mutual consent,’ ” id. (quoting HRS § 707-712(2) (1993)) (brackets omitted), and (a) Respondent “testified that he punched [Complainant] in self-defense without thinking and in reaction to [Complainant’s] swinging a crutch at him,” and (b) Complainant and Cousin testified that Complainant “did not attempt to swing the crutch at Respondent and did not take any aggressive action toward Respondent[,]” id. Thus, according to the dissent, “[t]here was no evidence that [Respondent] and [Complainant] had entered into a fight or scuffle by mutual consent.” Id.
IV.
On June 29, 2010, Petitioner filed an application for writ of certiorari (Application), urging this court to review the Memorandum Opinion of the ICA. Petitioner presents the following questions in its Application:
A. Whether the ICA gravely erred as a matter of law and fact in holding that the [ ] court should have submitted an instruction on a parental discipline defense to the jury[.]
B. Whether the ICA gravely erred in failing to find that the [ ] court did not commit plain error in failing to give a mutual affray instruction with respect to the lesser include offense of Assault in the Third Degree.
V.
A.
With respeсt to the first question, Petitioner maintains that because the requirements of HRS § 703-309 are set out in the conjunctive, rather than the disjunctive, a defendant “need only fail to fulfill any one element in order to fail to sustain the [ ] defense.” (Cit
As to the fourth element, Petitioner argues that even if the nature of the force, as opposed to the result of the force, is determinative under HRS § 703-309(l)(b), “ ‘the nature of [Respondent’s] conduct — a minimum of two punches to the face of [Complainant] — was clearly the type of conduct known to create a risk of causing substantial bodily injury, extreme pain, mental distress, or neurological damage.’” (Quoting Kikuta,
B.
As to its second question, Petitioner argues that “there was no evidence adduced that [Complainant] consented to enter into a fight or scuffle with [Respondent]” as evidenced by (1) Respondent’s testimony that (a) Complainant “was ‘sitting on the ground watching a video’ when [Respondent] pushed him[,]” and (b) Respondent later punched Complainant “without thinking[,]” and (2) the testimony of both Complainant and Cousin that Complainant “did not swing the crutch at [Respondent] or take aggressive action against him.”
VI.
As recounted, in the instant case, the court specifically refused the parental discipline instruction over objection by Respondent based on its finding that there was “no dispute that the force caused or resulted in substantially [sic] bodily injury[.]” “‘[T]he fundamental starting point for statutory interpretation is the language of the statute itself. Where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning[.]’” Kepoo v. Kane,
The language of HRS § 703-309(l)(b) is unambiguous and precludes a defense instruction under that section if “the force used [was] [ ] designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.” The statute does not preclude the defense on the ground that force resulted in substantial bodily injury. If the legislature had intended that the result of the force used be determinative under HRS § 703-309(1)(b), it could have drafted HRS § 703-309(l)(b) to reflect that intent. The fact that HRS § 703-309(l)(b) makes no mention of a result of substantial bodily injury supports the conclusion that the nature of the force is the dis-positive factor under that subsection.
Thus, under HRS § 703-309(l)(b), in some instances, criminal liability will attach to a defendant even though a defendant’s use of force did not result in substantial bodily injury, so long as the force used by the defendant was designed to cause or known to create a risk of substantial bodily injury. See Miller,
VII.
A.
At trial, Petitioner did not challenge the sufficiency of the evidence adduced by Respondent in support of the elements of HRS § 703-309. Rather, as stated, Petitioner argued, and the court concluded, that the parental discipline defense was per se unavailable to a defendant, because substantial bodily injury resulted under HRS § 703-309(1)(b). Petitioner did not advance any arguments pertaining to HRS § 703-309(1)(a), as to welfare of the Complainant. Thus, any argument based on that subsection has been waived. See State v. Rodrigues,
B.
Although Petitioner did not argue that Respondent was precluded from an instruction on the parental discipline defense under HRS § 703-309(l)(a), the ICA dissent and the dissent herein assert that Petitioner was not entitled to a parental discipline defense “because he did not strike [ ] Complainant for disciplinary reasons.” Dissenting opinion at 100,
VIII.
It is well-established that a defendant is entitled to an instruction on a defense having any support in the evidence, no matter how weak, unsatisfactory or inconclusive the evidence might have appeared to the court. Riveira,
A.
With respect to HRS § 703-309(1)(a), Respondent did adduce some evidence that the force “was employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfаre of the minor, including the prevention or punishment of the minor’s misconduct].]” Complainant testified at trial that he was fourteen at the time of the incident. As of the date of trial, he was six-feet tall, but at the time of the incident, he “was a couple inches shorter.” He also indicated that he weighed a hundred sixty pounds both at the time of trial and at the time of the incident.
Based on Respondent’s description of the force, i.e., a shove to Complainant’s shoulder while “he was off-balance” and two punches not aimed at Complainant’s face while one leg was in a east and he was “unable to put any weight on that leg[,]” it cannot be concluded as a matter of law that the degree of force employed against Complainant was excessive for the age and size of the minor. Because “the permissible degree of force [ ] var[ies] according to the child’s physique and age, the misconduct of the child, the nature of the discipline, and all the surrounding circumstances],]” that determination must be made by the jury. Matavale,
Additionally, there was some evidence under HRS § 703-309(l)(a) that the force was used for the purpose of the prevention of, or punishment for, Complainant’s misconduct. As recounted, Respondent testified at trial that he was a “father figure” to Complainant and “cared about him[,]” “loved him” and “provided for him.” On occasion, Respondent would need to discipline Complainant and “expeet[ed Complainant] to listen to [him].” Respondent related that after he struck Complainant he talked to him calmly and stated, “[W]hat makes you think you could stand up to dad, you know. Don’t do that, you know.” Although Respondent did not expressly state that he had used force for the purpose of disciplining Complainant or to promote his welfare, it can be reasonably inferred from the circumstances.
In Roman, the defendant was charged and convicted for abusing the seventeen-year-old son of his girlfriend (the minor).
This court found the foregoing conclusion “eurious[]” since the family court had described the minor as a “ ‘defiant child,’ based on [the m]inor’s ‘standing up’ and ‘staring’ at [the defendant] with ‘his fists clenched,’ ” and had also noted that conduct in slapping Minor was a “reaction to the boy’s defiance.” Id. at 480,
In the instant case, as Complainant’s stepfather, Respondent was likewise responsible for Complainant’s welfare, supervision, and general care. Based on Respondent’s testimony of Complainant’s acts of (1) slamming the glass door despite Respondent’s warning not to do so, (2) ignoring Respondent when Respondent attempted to talk to Complainant about such behavior, and (3) swinging a crutch at Respondent, the jury could have found that it would be “natural” for Respondent, “as one of the persons responsible for the general care and supervision of [Complainant], to view [Complainant’s acts] as misconduct that warranted discipline.” Id. Moreover, as in Roman, Respondent in fact stated that he had struck Complainant as “a reaction to what had just happened.”
This court has acknowledged on another occasion that the fact that the use of force may have arisen out of anger or short temper, does not automatically mean that such force was not reasonably related to the purpose of safeguarding or promoting the welfare of the minor, or for the prevention or punishment of misconduct. In Matavale, this court explained that
[the] protection for parents [afforded by the parental discipline defense] should exist even if the parent acts out of frustration or short temper. Parents do not always act with calmness of mind or considered judgment when upset with, or concerned about, their children’s behavior. Nor do parents always act pursuant to a clearly defined circumstance of discipline or control. A reaction often occurs from behavior a parent deems inappropriate that irritates or angers the parent, causing a reactive, demonstrative act. Heat of the moment must not result in immoderate physical force and must be managed; however, an angry moment*92 driving moderate or reasonable discipline is often part and parcel of the real world of parenting with which prosecutors and courts should not interfere. What parent among us can say he or she has not been angered to some degree from a child’s defiant, impudent, or insolent conduct, sufficiеnt to call for spontaneous, stern, and meaningful discipline?
Matavale,
The dissent maintains that any suggestion that parental discipline can occur reflexively or out of anger “is not persuasive [here],” because “this court has held that ‘heat of the moment must not result in immoderate physical force and must be managed[.]’ ” Dissenting opinion at 100,
Preliminarily, it must be made clear that our holding today does not “approve,” as the dissent suggests, of the type of force used by Respondent or of the resulting injuries to Complainant. Here, we must decide only whether the defense should have at least been considered by the jury; not whether Petitioner’s use of force was ultimately justified under the defense. We hold only that there was at least some evidence in the record supporting an instruction on the defense. Furthermore, even under the dissent’s citation to Matavale, “the question of reasonableness or excessiveness of physical punishment given a child by a parent is determined on a case-by-case basis and is dependent upon the particular circumstances of the case.” Matavale,
In a jury trial, whether the force employed by the defendant was “immoderate” or excessive is to be determined by the jury as the trier of fact. Where a defendant asserts the parental discipline defense in a jury trial, the court’s duty is to consider whether the defendant has raised any evidence supporting the instruction, not to determine whether such a defense has merit— that is for the jury to decide. In a jury trial, where the evidence is disputed, the foregoing question must be answered by the jury. Obviously, here, the evidence was in dispute.
IX.
A.
With respect to HRS § 703-309(l)(b), Respondent did adduce some evidence to support the two prongs set forth under that section. As to the first prong, regarding whether the force used was designed to cause substantial bodily injury, Respondent admitted that he had pushed Complainant on the shoulders with two hands while he was “off-balance” and therefore, “harder than [he] wanted to[J” He had additionally testified that at the time of the incident, his leg was in a cast and he was “unable to put any weight on that leg.” Respondent related that when he pushed Complainant, his crutches “fell down.” Thus, Respondent was apparently without the assistance of his crutches when Complainant got up off the floor and, according to Respondent, swung a crutch at him. Respondent then hit Complainant two times “to try to make him let go of [the] crutch.” Respondent further indicated that he was not aiming for Complainant’s face, but just “reacted” and did not have time to think.
As described by Respondent, there was some evidence that the force used was not designed to cause substantial bodily injury, inasmuch as Respondent testified that he was unable to place any weight on the leg that was in a cast, hit Complainant as a
To conclude that Respondent struck Complainant with a design of causing substantial bodily injury would require this court to determine the credibility of the witnesses and weigh the disputed evidence presented at trial. However, those matters are within the sole province of the jury as the trier of fact. See State v. Jhun,
B.
With respect to the second prong of HRS § 703-309(1)(b), regarding whether the force used was known to cause a risk of substantial bodily injury, again, the force used, under the circumstances described by Respondent, cannot be said to be of the nature and type of force that would necessarily be known to create a risk of substantial bodily injury as a matter of law. Whether or not two punches in this case creates a risk of substantial bodily injury requires consideration of the facts and circumstances. Such detеrmination is something that requires “the fact finder [to] consider the child’s age, the child’s stature, and the nature of the injuries inflicted[.]” Matavale,
In this case, for example, had the jury been instructed properly, it would be free to consider Respondent’s testimony that (1) he reacted to Complainant swinging the crutch at him, (2) one of his legs was in a east, (3) he could not place any weight on that leg, (4) he was without crutches, and (5) he was not aiming at Complainant’s face. A jury may have concluded that under those circumstances, the force used by Petitioner was not of a nature known to create a risk of substantial bodily injury. Because of the disputed evidence, that determination was to be made by the jury; not by the court. In sum, because there was some evidence indicating that under the circumstances, the force used was not designed to cause or known to create a risk of substantial bodily injury, Respondent was entitled to have the parental discipline defense instruction given to the jury for it to make that determination.
X.
The occasions upon which this court and the ICA have addressed the parental discipline defense have considered whether the prosecution had met its burden of disproving the defense beyond a reasonable doubt. See e.g. Crouser,
Contrastingly, the instant case was a jury trial in which the parental discipline defense instruction was not given and, thus, not considered by the tl’ier of fact. As said before, in denying the instruction, the court foreclosed the fact finder, in this case the jury, from considering evidence of such a defense. As noted previously, where the evidence is disputed and there is any evidence to support the defense, the instruction must be given by the trial court in order to allow the jury to consider the defense. Additionally, to reiterate, on appeal it is not for the appellate court to reconcile conflicting evidence as to that defense; that is a function for the fact finder at trial. Gabrillo,
As elucidated, there was some evidence adduced in this case supporting each element of the parental discipline defense. Because we cannot know how a jury would have resolved conflicting evidence regarding the defense, there is a reasonable possibility that the court’s error “might have contributed to [Respondent’s] conviction such that the error cannot be said to be harmless beyond a reasonable doubt.” Roman,
A.
As stated, Petitioner argues in its Application, that the ICA erred in failing to conclude that the court “did not commit plain error in failing to give a mutual affray instruction with respect to the lesser included offense of Assault in the Third Degree[.]” “‘As a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error.’” An error will be deemed plain error “‘[i]f the substantial rights of the defendant have been affected adversely[.]’ ” Additionally, “ ‘this [c]ourt will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.’ ” Nichols,
As was explained in Nichols,
B.
As recounted, Petitioner argued on appeal that even if Respondent was entitled to an instruction on mutual affray, such error was harmless, because the court’s failure to give an instruction on a lesser included offense “‘is harmless when the jury convicts the defendant of the charged offense or of an included offense greater than the included offense erroneously omitted from the instructions!.]’” (Quoting Haanio,
HRS § 701-115(1) (1993) provides in relevant part that “[a] defense is a fact or set of facts which negatives penal liability.” (Emphasis added.) HRS § 707-712(1) sets forth the offense of Assault in the Third Degree. HRS § 707-712(2) provides that Assault in the Third Degree will generally be a “misdemeanor unless committed in a fight or scuffle entered into by mutual consent,” in which ease, it is “a petty misdemeanor.” The commentary on HRS § 707-712 similarly explains that “Assault in the third degree ... is treated as a misdemeanor!,]” but “is reduced to a petty misdemeanor if the harm is inflicted in a fight or scuffle entered into by mutual
It may be noted that Respondent was charged with Assault in the Third Degree. Hawai'i Jury Instructions Criminal (HAW-JIC) 9.21 relating to mutual affray Assault in the Third Degree states that “[w]hen an Assault in the Third Degree instruction is submitted to the jury, the court must also submit a mutual affray instruction and special interrogatory where there is any evidence that the fight or scuffle was entered into by mutual consent.” (Emphasis added.) Accordingly, we hold that the court must submit a mutual affray instruction to the jury where there is any evidence in the record that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent, as indicated in HAWJIC 9.21.
c.
In the instant case, there was some evidence adduced that the injury to Complainant occurred in the course of a fight or scuffle entered into by mutual consent. The term “mutual consent” is not defined by statute and has not been defined by case law. We may “ ‘[r]esort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms [not statutorily defined].’ ” State v. Kalama,
In this case, although Complainant testified that he did not give Respondent permission to punch him, there was some evidence adduced from which Complainant’s consent to affray may be implied. As recounted, Respondent testified that he pushed Complainant on the shoulders, while Complainant was sitting on the floor, after being ignored several times. Respondent testified that after his crutches fell from under his arms, Complainant picked up one and swung the crutch at him. It was at that time that Respondent hit Complainant. Complainant conceded on cross-examination that “when
Respondent’s testimony that Complainant had swung the crutch at him is evidence from which it could be implied that, from that point, Complainant had impliedly consented to a fight or scuffle with Respondent.
D.
With all due respect, the dissent is incorrect that “trial courts will be obligated to instruct the jury sua sponte on mutual affray even though that defense may have little or no application to the facts of the case.” Dissenting opinion at 103,
XII.
Therefore, the October 1, 2008 Judgment of Conviction and Sentence filed by the court is vacated. The ICA’s June 8, 2010 judgment is affirmed in part and vacated in part and the ease remanded for retrial on the grounds set forth herein.
Notes
. HRS § 703-309 provides in relevant part as follows:
Use of force by persons with special responsibility for care, discipline, or safety of others.
The use of force upon or toward the person of another is justifiable under the following circumstances :
(1)The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:
The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and
lb) The force used is not designed to cause or known to create a risk of causing substantial bodily injuiy, disfigurement, extreme pain or mental distress, or neurological damage.
(Emphases added.)
HRS § 707-700 (1993) defines "substantial bodily injury” as bodily injury which causes:
(1) A major avulsion, laceration, or penetration of the skin;
(2) A chemical, electrical, friction, or scalding burn of second degree severity;
(3) A bone fracture;
(4) A serious concussion; or
(5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.
(Emphasis added.)
. HRS § 707-712 provides:
Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or
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(2) 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.
(Emphasis added.)
. The Honorable Rhonda A. Nishimura presided.
. The majority memorandum opinion was issued by Associate Judges Daniel R. Foley and Alexa D.M. Fujise, with Chief Judge Nakamura dissenting.
. HRS § 707-711 provides in relevant part:
Assault in the second degree. (1) A person commits the offense of assault in the second degree if:
(a) The person intentionally or knowingly causes substantial bodily injury to another;
(b) The person recklessly causes serious or substantial bodily injury to another[.]
. On cross-examination, Complainant testified that he remembered providing a written statement to a police officer in which he first stated that he had told Respondent, “I bet you can’t” get the stain out.
. It is noted that although Respondent maintained in his opening brief that he weighed approximately 185 to 190 pounds at the time of the incident, he testified that "[w]hen he had his cast on [he] gained about [twenty-two] pounds.” It is unclear as to whether the 185 to 190 pounds included the twenty-two pounds which Respondent had gained, or whether Respondent had gained twenty-two pounds while he had his cast on and then lost it prior to trial.
. Petitioner did not raise contentions relating to the first or second element of the parental discipline defense.
. As indicated before, it is unclear exactly how much Respondent weighed at the time of the incident, although he asserted in his opening brief that he weighed between 185 and 190 pounds at that time. See supra note 7.
. Briefly noted, Petitioner argued that, in Miller, the ICA determined that strikes to the head creates a risk of causing substantial bodily injury. In Miller, the family court had concluded that "striking the victim about the head did create the risk of causing substantial bodily injury or neurological damage.”
Petitioner apparently suggests that the court’s failure to instruct the jury on the parental discipline defense was harmless because no juror would have concluded that the force used by Respondent did not create a risk of causing substantial bodily injury. However, as recounted, there was conflicting testimony in the instant case and ”[i]t is for the ... fact-finder to assess the credibility of witnesses and to resolve all questions of fact[.]” Id. at 400,
. We disagree with the dissent’s assertion that the error in this case is harmless beyond a reasonable doubt. See dissenting opinion at 101,
The dissent challenges the foregoing, asserting that in some cases the force used against a minor is "so unreasonable as to take the issue of the parental discipline defense away from the jury.” Dissenting opinion at 101 n. 3,
. "The introduction to the HAWJIC indicates that '[n]othing herein contained shall be construed as an approval by the Supreme Court of the State of Hawai'i ... of the substance of any of said instructions.” State v. Toro,
. The dissent asserts that an instruction on mutual affray "was not supported by the evidence[.]” Dissenting opinion at 101-02,
. According to the dissent. State v. Stenger,
Second, the dissent’s view of Stenger would have to be justified under the doctrine set forth in Marks v. United States,
Concurrence Opinion
Concurring Opinion by
I agree with the opinion of Associate Justice Acoba and thus have signed it. I concur not to limit what is stated in that opinion, but to add to the justification for remand of the case for a new trial.
This case presents the question whether twelve citizens representing our community as jurors are barred as a matter of law from deciding whether a stepfather (Respondent/Defendant-Appellant Cedric K. Kikuta (Defendant)) exercised parental discipline when he pushed his fourteen-year-old stepson (Justin) into a glass door and struck him in the face. Trial judges are rightfully adverse to the notion that judges should substitute their values for those of jurors by barring a defense requested by a defendant. It is beyond cavil that the right to a jury trial is paramount among those rights enjoyed by individual citizens. It is said that the individual citizen’s right to а jury of peers is the greatest protection we have from unlawful government action:
The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is guaranteed to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the higher authority. The framers of the constitutions strove to create and independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.
Duncan v. Louisiana,
In this case, the trial judge deprived Defendant of the right to present his defense and, thus, his right to a fair trial. A requested instruction is to be given where, as here, there is any evidence to support the defense. On cross examination the prosecutor established that Defendant acted as a father figure, who exercised discipline against Justin on the day of the incident because he did not clean up a rug stain from the dog, slammed the door in anger, did not listen, and gave attitude. The prosecutor’s questioning established that the argument between Defendant and Justin was about discipline. Defendant threatened to ground Justin for a year. And he admitted he pushed Justin’s shoulders while he was sitting on the ground watching the computer and eventually struck him because he was teaching him not to stand up to “dad”: “I was like, what makes
Cases cited by the dissent support the proposition that Defendant should not have been stripped of his right to have the jury consider his defense. In State v. Crouser,
Defendant’s right to a fair trial was further compromised after the court denied his request for a parental discipline instruction. Barred from asserting and having the jury consider his chosen defense, Defendant was limited to arguing only self defense to the jury. Yet, during closing argument the prosecutor advised the jury to reject Defendant’s contention that he acted in self defense because his true intent was not to protect himself, but rather to discipline Justin. Specifically the prosecutor argued that Defendant exercised discipline when he became angry at Justin’s attitude, particularly after Justin walked away and slammed the door. She emphasized that the incident took place because Defendant was going to “ground” Justin for a year, and the only way Defendant knew to “control” Justin was through anger. Her position was that Defendant did not act through self defense but as an angry father trying to control his son: “That person over there, his father, caused those injuries. He wasn’t justified. There was no need for self-defense. He did it. He was angry and that’s the only way he knew to control Justin.” Legally barred from taking the very position argued by the prosecutor, Defendant’s chosen defense was gutted.
. Each case was a bench trial.
Dissenting Opinion
Dissenting Opinion by
with whom RECKTENWALD, C.J., joins.
I respectfully dissent. In my view, there was no evidence supporting a parental discipline defense instruction under Hawai'i Revised Statutes (HRS) § 703-309(1)(a) (1993). Additionally, the circuit court was not required to issue a special interrogatory on mutual affray sna sponte. Therefore, I would vacate the Intermediate Court of Appeals’ (ICA) memorandum opinion and affirm Cedric K. Kikuta’s (“Kikuta”) conviction.
A. Kikuta Was Not Entitled To a Parental Discipline Instruction Under HRS § 703-309(l)(a) and the Failure To Instruct the Jury On That Defense Was Harmless.
Under HRS § 703-309(l)(a), the “force employed” to discipline a child must be “reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s miseonduct[.]”
The majority asserts that the Complainant misbehaved and that parental discipline can occur reflexively or out of anger. Majority opinion at 91-92,
Finally, the failure to give the parental discipline instruction was harmless because there was no reasonable possibility that Ki-kuta’s actions qualified as parental discipline under HRS § 703-309(1)(a). See Roman,
Here, no evidence was adduced that the degree of force employed by Roman caused bruising, swelling, or required medical attention. Consequently, Roman’s discipline was not so excessive that it “severed any relationship between the use of force and the welfare of [Minor] which might be considered ‘reasonable. ’ ” Tanielu,82 Hawai'i at 381 ,922 P.2d at 994 . The discipline used by Roman was reasonably proportionate to Minor’s misconduct, i.e., his defiant attitude and demeanor, and the discipline was necessary to punish Minor’s misconduct. Therefore, we believe that, in light of the circumstances in this case, including the family court’s expressed findings, the prosecution failed to disprove Roman’s parental discipline defense beyond a reasonable doubt.
Id. (emphasis added).
Unlike Roman, the force employed by Ki-kuta was excessive and caused a broken nose and chipped teeth. Therefore, the parental discipline instruction was not warranted in this ease.
B. The Trial Court Bid Not Plainly Err By Failing To Instruct the Jury Sua Sponte On the Defense Of Mutual Affray.
I respectfully dissent from the majority’s conclusion that the trial court reversibly
The majority concludes that mutual affray is a “mitigating defense that reduces the offense of Assault in the Third Degree to a petty misdemeanor” and that “[ajccordingly, ... the court must submit a mutual affray instruction to the jury where there is any evidence in the record that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent, as indicated in [Hawai'i Jury Instructions Criminal (“HAWJIC”) ] 9.21.” Majority opinion at 95-96, 96,
First, even assuming the “some evidence” standard applied to the mutual affray instruction in this case (as discussed below, it does not), Kikuta did not adduce any evidence supporting the defense of mutual affray. I agree with the majority that Hawai'i case law does not define the term “mutual consent” in this context and that mutual affray “requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct.” Majority opinion at 96, 96-97,
The majority asserts that Kikuta’s testimony that he struck the Complainant after the Complainant attempted to hit him with a crutch supports the mutual affray defense. Majority opinion at 96-97,
The majority asserts that this opinion requires an express statement of an intent to fight. Majority opinion at 97 n. 13,
Furthermore, Kikuta’s description of the fight undermines his use of the mutual affray defense. Kikuta testified that he struck the Complainant reflexively in order to force the Complainant to drop the crutch. Nothing in Kikuta’s testimony indicated an intent to engage the Complainant in a fight. The Complainant and his cousin testified that Kikuta was the aggressor, and that the Complainant did not agree to fight.
Furthermore, the result of the majority’s opinion is that in any case involving a fight with two active participants, the trial court must instruct the jury sua sponte on the defense of mutual affray. This holding is much too broad and far-reaching. The better rule would be to confine the instruction to situations that warrant it, and where the evidence supports it. Now, trial courts will be obligated to instruct the jury sua sponte on mutual affray even though that defense may have little or no application to the facts of the ease.
. Additionally, I disagree with the majority’s conclusion that the prosecution waived this argument, because ''[a]n appellate court may affirm a judgment of the lower court on any ground in the record that supports affirmance.” State v. Fukagawa,
The majority asserts that the circuit court did not address this argument and the argument was
The majority also asserts that HRS § 703-309(1 )(a) requires a determination of fact. Majority opinion at 89-90,
. The concurring opinion asserts that Crouser, Miller, and Tanielu "support the proposition that Defendant should not have been stripped of his right to have the jury consider his defense.” Concurring opinion at 99,
. At various points, the majority asserts that the dissent "assumes the role of the trier of fact in this case....” Majority opinion at 94 n. 11, 92,
At some point, the force used is so unreasonable as to take the issue of the parental discipline defense away from the jury. For instance, if a parent shoots a minor and asserts the parental discipline defense, in my view, a trial court should not instruct the jury on the parental discipline defense because the evidence adduced does not create a jury question as to whether the use of that force was reasоnably related to the discipline of a minor. See HRS § 703-309(1)(a). In this case, the two punches to the face of the Complainant resulting in a broken nose and chipped teeth exceeded that point, and therefore the circuit court properly refused Kikuta’s request for a parental discipline defense instruction.
. The majority asserts that this argument "disregards” Kikuta’s testimony and weighs the evidence. Majority opinion at 97 n. 13,
. The majority asserts that the majority opinion in Stenger is binding on this court. Majority opinion at 97 n. 14,
Furthermore, although the majority notes some criticism of the Marks doctrine, federal courts have continued applying it. See Jackson v. Danberg,
. The majority asserts that it is not requiring trial courts to instruct the jury on all available defenses, but only those supported by the evidence. Majority opinion at 97-98,
However, the majority has set the threshold for a sua sponte defense instruction so low that its opinion effectively requires the trial court to instruct the jury sua sponte as to all available defenses. See Stenger,