76 Hawai'i 387, State v. Kupau, 15885

CourtSupreme Court of Hawai'i
Citation879 P.2d 492,76 Hawaii 387
Docket NumberNo. 15885,15885
Parties76 Hawai'i 387 STATE of Hawai'i, Petitioner-Appellee, v. Walter KUPAU, Jr., Respondent-Appellant.
Decision Date22 August 1994

Peter V.N. Esser, on the briefs, Honolulu, for respondent-appellant Walter Kupau, Jr.

Patricia A. Loo, Deputy Pros. Atty., on the briefs, Honolulu, for petitioner-appellee State of Hawai'i.


LEVINSON, Justice.

On June 13, 1990, a Honolulu grand jury returned an indictment against the respondent-appellant Walter Kupau, Jr., charging him with having intentionally or knowingly caused substantial bodily injury to James Rockwell on or about September 6, 1988, thereby committing the offense of assault in the second degree in violation of Hawai'i Revised Statutes (HRS) § 707-711(1)(a) (Supp.1992). 1 A jury subsequently found Kupau guilty as charged, and the circuit court sentenced him to probation for a term of five years.

Kupau appealed his conviction and sentence, claiming, inter alia, that the circuit court committed plain error 2 by failing, sua sponte, to instruct the jury as to the included offense of assault in the third degree. 3 Kupau's opening brief at 20. We assigned the appeal to the Intermediate Court of Appeals (ICA), which, in a published opinion, vacated the circuit court's judgment and sentence and remanded the matter to the circuit court for a new trial. State v. Kupau, --- Hawai'i ----, ----, 879 P.2d 559, 565 (App.1994). In so doing, the ICA held as follows:

In the instant case, there was sufficient evidence proffered at trial from which a jury could have reasonably concluded that [Kupau] was guilty of [assault in the third degree] rather than [assault in the second degree]. Accordingly, the trial court was obligated, even absent a request by either party, to so instruct the jury. The trial court's failure to do so constitutes plain error.

Id. at ----, 879 P.2d at 565.

The petitioner-appellee State of Hawai'i (State or prosecution) applied to this court for a writ of certiorari, urging that: (1) "[the] trial court is not obligated to instruct the jury, sua sponte, as to a lesser included offense [ ] if there is no rational basis for the instruction" (a proposition with which we agree, see HRS § 701-109(5) (1985)); and (2) "[even] if ... there was a rational basis for a [lesser included offense] instruction [as to assault in the third degree], the [circuit] court's failure to instruct the jury sua sponte was not 'plain error' " (a proposition with which we disagree). State's application for writ of certiorari at 5, 7.

Although we agree with the ICA's disposition of the present appeal, we granted the State's application for certiorari because we believe that the analysis set forth in the ICA's decision is incomplete. We therefore provide the following elaboration.


In its decision, the ICA thoroughly explicated the facts relevant to the present appeal, and we need not regurgitate them here. For present purposes, the following synopsis is sufficient. At trial, the complaining witness, James Rockwell, testified that Kupau subjected him to an unprovoked attack, in which Kupau and another person (Meyer) grabbed him under the armpits, dragged him along a sidewalk outside Meyer's house and through a picket gate, and threw him onto the paved lane. According to Rockwell, Kupau then pounded his head into the pavement and commenced to beat his ribs and the side of his head. Rockwell testified that the altercation lasted "at most five minutes." 10/21/91 Tr. at 16-17, 21-22.

Meyer and Kupau's trial testimony diverged substantially from Rockwell's. Meyer testified that Rockwell initiated a noisy and belligerent encounter at Meyer's home and that Kupau, his neighbor, telephoned to offer assistance. Meyer declined the help at that time, but claimed that shortly thereafter a scuffle ensued between himself and Rockwell and that he then called for Kupau. Meyer testified that Rockwell was holding a beer bottle throughout the confrontation and that, when Kupau appeared, Rockwell raised the bottle in the air. Id. at 37-39.

Kupau testified that, as he approached the scene, Rockwell appeared to be poised to strike Meyer with the bottle, so Kupau struck Rockwell first. Alternatively, Kupau maintained that "I went go for hit [Rockwell] because I thought he's going to sling that beer bottle at me.... I crack him.... He went on the fence and I went on the fence and fell on the fence[.]" Id. at 96. Kupau insisted that he "hit [Rockwell] one time and that was it," id. at 111, and steadfastly held to his position that he had acted in self-defense.

By stipulation of the parties, medical records were received in evidence reflecting that, as a result of the incident variously described above, Rockwell suffered: (1) a one-inch laceration to the left side of his head, for which he received three stitches; (2) two hematomas to his head; (3) a sprained left wrist; and (4) two possible left rib fractures. Record on Appeal at 153-54, 162.

At the close of the evidence, the circuit court instructed the jury as to the law regarding assault in the second degree. Neither the prosecution nor Kupau requested an instruction regarding the included offense of assault in the third degree, and the circuit court did not, sua sponte, give such an instruction.

As noted, Kupau was convicted of assault in the second degree and was sentenced to a five year term of probation.

A. There Was A Rational Basis In The Evidence For A Verdict Acquitting Kupau Of The Offense Charged And

Convicting Him Of The Included Offense.

In Kupau, supra, the ICA correctly noted that "[in] Hawai'i, a trial court 'is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.' HRS § 701-109(5) (1985)." Id. at ----, 879 P.2d at 562. Accordingly, the ICA properly framed the threshold question as "whether, based on the evidence in this case, the jury could rationally have acquitted [Kupau] of second degree assault charges and convicted him instead of third degree assault." Id.

In order to answer the threshold question thoroughly, it is necessary to understand the interrelationship among a number of key provisions of the Hawai'i Penal Code, which establish a fundamental paradigm critical to a complete understanding of the substantive offenses set out in the code. In this connection, we noted in State v. Chung, 75 Haw. 398, 411, 862 P.2d 1063, 1070 (1993), that:

"HRS § 701-114 [ (1)(a) and (b) (1985) ] requires proof beyond a reasonable doubt of each element of the offense, as well as '[the] state of mind required to establish each element of the offense.' " State v. Pinero, [75 Haw. 282, 300, 859 P.2d 1369, 1378 (1993) ]. Moreover, HRS § 702-204 (1985) provides in relevant part that "a person is not guilty of an offense unless [the person] acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense." Finally, HRS § 702-207 (1985) provides that "[when] the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears."

See also In re Doe, Born on January 5, 1976, 76 Hawai'i 85, 92, 869 P.2d 1304, 1311 (Sup.1994). In addition, "[pursuant] to HRS § 702-205 (1985), 4 [the requisite] state of mind applies to such conduct, attendant circumstances, and results of conduct as are specified by the definition of the offense." Chung, 75 Haw. at 411-12 n. 8, 862 P.2d at 1071 n. 8.

With the fundamental paradigm of the Hawai'i Penal Code in mind, we now turn our attention to the ICA's analysis in this case.

The ICA's rationale as to why the circuit court erred in failing to instruct the jury regarding the included offense of assault in the third degree was as follows:

The difference between these two types of assault [i.e., assault in the second and third degrees] ... is the degree of injury, and pursuant to HRS § 701-109(4)(c) (1985), every charge of [assault in the second degree] under HRS § 707-711(1)(a) necessarily includes the [included] offense of [assault in the third degree] under HRS § 707-712(1)(a).


Whether Rockwell's injuries amounted to a "bone fracture" or a "major laceration, avulsion, or penetration of the skin" so as to constitute "substantial bodily injury" was a question of fact for the jury, which could [rationally] have concluded that Rockwell did not sustain a "substantial bodily injury." Consequently, [Kupau] could have been acquitted of the [assault in the second degree] charges [sic]. The jury could also have [rationally] concluded that Rockwell suffered at least physical pain, illness, or harm amounting to bodily injury and therefore convicted [Kupau] of the [included offense] of [assault in the third degree]. Therefore, a rational basis existed in the evidence for acquitting [Kupau] of the greater offense and convicting him of the [included offense], and pursuant to HRS § 701-109(5), [Kupau] was entitled to the [included offense] instruction.

Kupau, --- Hawai'i at ---- - ----, 879 P.2d at 562-563 (footnote omitted).

The ICA's analysis is not incorrect as far as it goes; assault in the second degree, pursuant to HRS § 707-711(1)(a), and assault in the third degree, pursuant to HRS § 707-712(1)(a), do indeed differ with respect to the requisite degree of injury--i.e., the result of Kupau's conduct. See HRS §§ 701-109(4)(c), 701-114(a), and 702-205. But in light of the nature of Rockwell's injuries, see supra at 6, we believe that there is a more significant difference and a broader issue--Kupau's requisite state of mind with respect to his...

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