In re DM
| Decision Date | 28 January 2022 |
| Docket Number | CAAP-20-0000485 |
| Citation | 502 P.3d 1025 (Table) |
| Parties | In the INTEREST OF DM |
| Court | Hawaii Court of Appeals |
On the briefs:
Brian R. Vincent, Deputy Prosecuting Attorney, for Plaintiff-Appellee/ Cross-Appellant
Phyllis J. Hironaka, Deputy Public Defender, for Minor-Appellant/ Cross-Appellee
MEMORANDUM OPINION
Minor-Appellant/Cross-Appellee DM (Minor ) appeals from the November 15, 2019 "Order Re: Motion for Reconsideration of Order Adjudicating Minor of Attempted Assault in the First Degree and Restitution Filed October 29, 2019" and the July 24, 2020 "Findings of Fact and Conclusions of Law" (FOFs/COLs ) entered by the Family Court of the First Circuit (Family Court ).1 After a bench trial, the Family Court adjudicated Minor a law violator under Hawaii Revised Statutes (HRS ) § 571-11(1) (2018)2 for committing Attempted Assault in the First Degree (Attempted Assault 1 ) in violation of HRS §§ 705-500 (2014)3 and 707-710(1) (2014).4
On appeal, Minor challenges several of the Family Courts FOFs and COLs,5 and argues that the Family Court erred in concluding that (1) he intentionally stabbed the complaining witness (CW ) with his knife; (2) his use of deadly force in self-defense was not justifiable under the circumstances because it exceeded the amount of force that was reasonable; (3) he could have avoided the necessity of force by retreating to complete safety; and (4) the State disproved that Minor acted in self-defense beyond a reasonable doubt.
On cross-appeal, Plaintiff-Appellee/Cross-Appellant State of Hawai'i (State ) appeals from the (1) June 29, 2020 "Order Re: Contested Restitution Hearing"; (2) July 16, 2020 "Order Denying State's Motion to Reconsider June 29, 2020 Order Denying Restitution"; and (3) July 16, 2020 "Amended Order Re: Contested Restitution", all entered by the Family Court.6 In its cross-appeal, the State contends the Family Court erred in concluding that the Crime Victim Compensation Commission (CVCC ) was not a "victim" under HRS § 571-48 (11) and (13) (2018)7 , placing the burden on the State to show that Minor or his parents had the ability to pay restitution, and holding CW could not be compensated directly.
For the reasons discussed below, we affirm.
The pertinent background adduced from the three-day bench trial is as follows.
CW testified that he lived in Ewa Beach and attended a friend's birthday party at "Hau Bush" beach park (Hau Bush ) in Ewa Beach in the early morning of June 2, 2019; there, he saw Minor, whom he had not met before. CW testified that he approached Minor, but Minor did not want to talk so CW stepped away until Minor yelled "Kalihi Mafia." CW responded, and called Minor to fight. Minor asked CW if he was serious and then CW "just punched him" because Minor yelled "Kalihi Mafia" which CW knew was a gang in Kalihi.
CW testified that he and Minor "[fought] for a couple seconds swinging at each other, and then [CW] tackled him to ... the floor." Minor then "got up, went to the car, grabbed the knife." CW stated that the cars were five to twenty feet from where they fought and CW knew Minor had a knife because "[e]verybody yelled he had a knife[.]" Minor yelled "who like get stab?" as Minor approached CW. CW then threw punches at Minor and Minor stabbed CW. CW did not immediately realize he had been stabbed and continued swinging punches at Minor and tackled Minor again. Minor became aware he had been stabbed after he stood up "feeling weird" and noticed "it started to hurt and then started bleeding." CW's lower left ribs was gushing blood onto his shorts. He rushed to his friend's car and went to the hospital, where he received surgery for his injuries.
On cross-examination, CW testified that he got into a different altercation with another male at Nimitz Beach earlier that night but he did not start it. CW also testified that he drank two twelve-ounce cans of Four Loko, some Malibu rum and smoked marijuana earlier that night. CW stated that it was not his first night drinking alcohol and that it takes "10 beers" to get drunk.
Nineteen-year-old Hunter Zeller-Cortez (Hunter ) testified that he is CW's friend, was at Hau Beach the night of the incident, and met Minor a couple of days before that night. Hunter testified that he heard what sounded like "a lot" of people arguing, but only saw CW and Minor arguing. He did not see the fight begin, but saw both Minor and CW using their fists on each other. Hunter testified that during the fight, he tried to break it up and that "a couple people [were] holding them back and then [Hunter] was in the middle pushing them away." Hunter testified he broke up the fight and then walked away from the area with his friend who had been hit by someone other than CW or Minor during the fight. Hunter was calming his friend down and "less than [a] couple minutes" later, Hunter saw Minor leave in a car with one other person. He then found CW in the back seat of Hunter's car, and helped CW up, but CW punched him. Hunter looked at his shirt and saw blood so he helped CW into the back of his friend's truck and they left for the hospital.
Seventeen-year-old KJ testified that she was at Hau Beach with a couple of friends, including Hunter, CW, and EO on the night of the incident. She had not met Minor previously and did not know how the first altercation started. CW and Minor were yelling at each other, and she and Hunter were trying to calm CW down. KJ saw CW run around the cars to face Minor and saw Minor pull a knife from a car. CW then tackled Minor and was stabbed. KJ testified that Minor's knife just went in like "when someone hits but with a knife."
On cross-examination, KJ testified that while Minor and CW were still separated, Minor took out his knife and said "you like get shanked?" After Minor said "you like get shanked?" CW ran toward Minor because "[CW] got mad at the fact that [Minor] said that." It took CW between ten to thirty seconds to reach Minor, CW tackled Minor and they ended up on the ground. KJ testified that she saw the initial round of fighting and explained, During the first fight, other individuals were getting "rowdy" but KJ did not see if other people were hitting Minor.
Seventeen-year-old EO is CW's close friend and he did not know Minor. EO testified that he was at Hau Beach on the night of the incident and at one point, an argument broke out between two "sides" of the beach park. He only saw CW and "some other guy on the other side." CW was yelling "Ewa Beach," and someone else yelled "Kalihi," but he was not sure how many people were yelling. At one point there was an argument, then a "slight fight" between CW and the other boy, with a "couple punches" thrown. EO initially testified his friends broke up the fighting by "telling us to stop" but then denied being personally involved and claimed they were only talking to CW. He saw CW fighting with "one or two" people, but did not know who they were. After the initial fight ended, "they went back to their places" and then "came back arguing." After they started arguing, the other boy pulled out a knife from his pocket, then CW broke out from being held back and tackled Minor. They both fell, then CW got up asking to go to the hospital. He believed the altercation involving the knife was only between CW and the boy.
EO testified on cross-examination that he and CW are "really close," and they were both drinking earlier that night at Nimitz Beach. He did not see the initial arguing but saw that CW threw the first punch and they both ended up on the ground. Later, CW tackled the boy by "launch[ing] himself off the ground" and "flying his ... body towards him." They both fell, and that is when CW got stabbed. When the boy pulled out the knife, he said "you like get stabbed," then CW "broke out" to tackle the boy despite multiple people trying to hold him back. Minor did not move from the spot where he stood when he made his threat, but when CW broke out, CW took long strides and quickly launched himself in the air to tackle Minor. Most people there were from Ewa Beach. It was pitch-black that night, and the only light was from open car doors.
Minor testified that the night of the incident, his cousin picked him up in his car, and they went out "looking for parties." He learned through social media about a party at Hau Bush. Minor had a "couple beers," but his cousin did not drink because he was the designated driver. There were about twenty cars at Hau Beach when they arrived, and it was pitch black outside except for the lights from open car doors. On arrival, Minor went to talk to "some girls," and his cousin went to meet his friends, but Minor did not know exactly where he was. CW and a "couple ... other guys" approached Minor and started introducing themselves. CW was initially friendly. CW held a twenty-two ounce can of Four Loko, smelled like alcohol, had glossy eyes, and kept talking to Minor. CW asked Minor to sip his drink but Minor declined; CW's friendliness began to feel "sketchy," so Minor asked CW to leave. Minor continued talking to a girl, then CW "came out of nowhere" and disrespected the girls who were standing by Minor, calling them "bitch and slut." Minor told CW to "chill" and to get away, but CW was "all drunk" and started getting "all nuts" after that. CW began "calling [Minor] out" to fight, but Minor declined and tried to reason with him, repeatedly saying he did not want any problems. CW was not wearing a shirt and he had a cigarette in his hand. CW continued calling him out and said "where you from?"; Minor responded, "Kalihi,"...
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