79 Hawai'i 46, State v. Kinnane

• Decision Date: 15 June 1995
• Docket Number: No. 15713,15713
• Citation: 897 P.2d 973
• Parties: 79 Hawai'i 46 STATE of Hawai'i, Respondent-Appellant, v. Thomas K. KINNANE, Petitioner-Appellant.
• Court: Hawaii Supreme Court

Page 973

897 P.2d 973

79 Hawai'i 46

STATE of Hawai'i, Respondent-Appellant, v. Thomas K. KINNANE, Petitioner-Appellant.

No. 15713.

Supreme Court of Hawai'i.

June 15, 1995.

Edward K. Harada, Deputy Public Defender, on the briefs, Honolulu, for petitioner-appellant Thomas K. Kinnane.

State of Hawai'i, respondent-appellant, did not file a supplemental brief.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The petitioner-appellant Thomas K. Kinnane appeals from the judgment, guilty conviction, and probation sentence of the first circuit court, filed on October 24, 1991, adjudging him guilty of the offenses of attempted sexual assault in the second degree, in violation of Hawai'i Revised Statutes (HRS) §§ 705-500 (1985) ¹ and 707-731(1)(a) (Supp.1992) ² (Count I), and sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (Supp.1992) ³ (Count II). We assigned the appeal to the Intermediate Court of Appeals (ICA). Because the ICA deemed all of Kinnane's points of error on appeal to be without merit, it affirmed Kinnane's convictions in a memorandum opinion filed on October 6, 1992. State v. Kinnane, 9 Haw.App. 654, 840 P.2d 382 (1992) (mem. op.) (hereinafter "ICA's decision"). We granted Kinnane's application for a writ of certiorari to review the ICA's decision.

Although Kinnane alleges five defects in the ICA's decision, we choose to address only one. Because, in connection with the charge of attempted sexual assault in the second degree, we hold that the circuit court erred in refusing to instruct the jury regarding the included offenses of sexual assault in the fourth degree and attempted sexual assault in the fourth degree, we vacate Kinnane's conviction of the offense of attempted sexual assault in the second degree and remand the matter to the circuit court for further proceedings consistent with this opinion. In all other respects, we affirm the ICA's decision.

I. BACKGROUND

At trial, the complainant testified that, after going out on a date on the night of September 17, 1990, she returned to the apartment that she shared with Trent Johnson. Kinnane, a friend of Johnson's, was present in the apartment at the time. After a few minutes, the complainant proceeded to her bedroom and dressed for bed in a nightshirt and panties. Because it was a very warm night, the complainant left the door to her room ajar for cross-ventilation and then fell asleep. Sometime thereafter, the complainant was awakened to discover Kinnane kneeling over her; she felt Kinnane's penis on her stomach and one of his hands inside her panties. The complainant ordered Kinnane out of her room, and Kinnane gathered his clothes and exited, licking the fingers of his left hand. The next day, the complainant reported the incident to the police and to the Sex Abuse Treatment Center (SATC), where a physician performed a pelvic examination. ⁴

By contrast, Kinnane testified that he had entered the complainant's bedroom after becoming sexually aroused by noises that caused him to believe that the complainant was masturbating. When he looked into the complainant's bedroom, she was indeed masturbating and fondling her left breast. Kinnane then entered the room and kissed the complainant's stomach. The complainant requested that Kinnane leave, and he complied. According to Kinnane, the complainant smiled and licked the fingers of her left hand. Kinnane acknowledged in his testimony that he wanted to have sex with the complainant, but only if she was willing. Kinnane denied touching the complainant either with his penis or his hand, although he admitted kissing her stomach.

During settlement of jury instructions, the deputy public defender (DPD) representing Kinnane requested that the trial court give Defendant's Supplemental Jury Instruction No. 12, which provided:

If you are unable to reach a unanimous verdict as to the offense of (Attempted) Sexual Assault in the Second Degree, then you may consider whether the prosecution has proven the offense of (Attempted) Sexual Assault in the Fourth Degree.

A person commits the offense of (Attempted) Sexual Assault in the Fourth Degree if he knowingly subjects another person to sexual contact by compulsion.

There are three elements to the offense of (Attempted) Sexual Assault in the Fourth Degree, each of which must be proven beyond a reasonable doubt. These elements are:

1. That Thomas Kinnane subjected [the complainant] to an act of sexual contact;

2. That the act of sexual contact by Thomas Kinnane upon [the complainant] was done so by compulsion; and

3. That the act of sexual contact by Thomas Kinnane upon [the complainant] was done knowingly[.]

If the prosecution has proven, beyond a reasonable doubt, all three of the elements of (Attempted) Sexual Assault in the Fourth Degree, then you must find Thomas Kinnane guilty of the offense of (Attempted) Sexual Assault in the Fourth Degree. However, if the prosecution has not proven, beyond a reasonable doubt, every element of the offense of (Attempted) Sexual Assault in the Fourth Degree, then you must find Thomas Kinnane not guilty of the offense of (Attempted) Sexual Assault in the Fourth Degree.

(Parentheses in original and bracketed material supplied). ⁵ The DPD urged the supplemental instruction on the basis that this is a lesser included offense. It has the same state of mind. The element of compulsion is the same. The only difference, I guess, is the degree to which there is contact. Based upon that, Your Honor, since it is a lesser form of contact, we believe that sex assault four is a lesser included offense to sex assault second degree. In addition to--oh, in addition to what was already proffered ..., Defendant's Supplemental 12, I ask the Court to also modify such that the attempt element, the law is incorporated into this instruction.

(Emphasis added.)

Over Kinnane's objection, the trial court refused Defendant's Supplemental Jury Instruction No. 12 pursuant to the rationale that "the sexual attempt in the second degree speaks about sexual penetration by compulsion; whereas, the instruction for attempted sexual assault in the fourth degree speaks about sexual contact. So as far as the states of mind, there are two different states of mind with regard to the offenses."

Kinnane timely appealed his convictions, urging, inter alia, that the trial court erred by denying his request for a jury instruction on an included offense.

II. THERE WAS A RATIONAL BASIS IN THE EVIDENCE FOR A VERDICT ACQUITTING KINNANE OF THE CHARGED OFFENSE OF ATTEMPTED SEXUAL ASSAULT IN THE SECOND DEGREE AND CONVICTING HIM OF THE INCLUDED OFFENSES OF SEXUAL ASSAULT IN THE FOURTH DEGREE AND ATTEMPTED SEXUAL ASSAULT IN THE FOURTH DEGREE.

A. Standard of Review

"When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Kelekolio, 74 Haw. 479, 514-15, 849 P.2d 58, 74 (1993) (citations omitted) (emphasis added). See also State v. Hoey, 77 Hawai'i 17, 38, 881 P.2d 504, 525 (1994); State v. Horswill, 75 Haw. 152, 155, 857 P.2d 579, 581 (1993); State v. Lee, 75 Haw. 80, 112, 856 P.2d 1246, 1263 (1993).

B. General Entitlement To Included Offense Instructions

"[W]hen a defendant in a criminal case timely asks for a lesser included offense instruction to which he [or she] is entitled, it is reversible error not to give it." State v. Williams, 6 Haw.App. 17, 18, 708 P.2d 834, 835 (1985) (citing 2 Wright, Federal Procedure and Practice: Criminal 2d § 498 (1982)). On the other hand, "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)." State v. Kupau, 76 Hawai'i 387, 390, 879 P.2d 492, 495 (1994) (citation and internal quotation marks omitted).

Indeed, in the absence of such a rational basis in the evidence, the trial court should not instruct the jury as to included offenses. See generally State v. Sneed, 68 Haw. 463, 718 P.2d 280 (1986). A fortiori, it is not error for a trial court to refuse--and the trial court should refrain from giving--an instruction regarding an uncharged offense that is not "included," for purposes of the Hawai'i Penal Code, within the charged offense. See generally State v. Pukahi, 70 Haw. 456, 776 P.2d 392 (1989); State v. Freeman, 70 Haw. 434, 774 P.2d 888 (1989); State v. Burdett, 70 Haw. 85, 762 P.2d 164 (1988); State v. Woicek, 63 Haw. 548, 632 P.2d 654 (1981); State v. Kupau, 63 Haw. 1, 620 P.2d 250 (1980); State v. Rullman, No. 16389, slip op. at 7-8, --- P.2d ----, ---- - ---- (Haw.Ct.App. May, 25, 1995); State v. Doi, 6 Haw.App. 115, 711 P.2d 736, cert. denied, 68 Haw. 692 (1985).

Where there is such a rational basis in the evidence, however, we have held that it may be plain error ⁶ for a trial court to fail to give an included offense instruction even when neither the prosecution nor the defendant have requested it; ⁷ this is because

the trial court is the sole source of all definitions and statements of law applicable to an issue to be resolved by the jury. Moreover, it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he or she shall state to them fully the law applicable to the facts. And faced 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. In other words, the ultimate responsibility properly to instruct the jury lies with the circuit court and not with trial counsel.

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