State ‘i v. Kikuta
| Decision Date | 11 August 2011 |
| Docket Number | No. 29445.,29445. |
| Citation | 253 P.3d 639,125 Hawai'i 78 |
| Parties | STATE of Hawai‘i, Petitioner/Plaintiff–Appelleev.Cedric K. KIKUTA, Respondent/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
Anne K. Clarkin, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee State of Hawai‘i.Summer M.M. Kupau, Deputy Public Defender, (Jon N. Ikenaga, Deputy Public Defender, on the brief) for respondent/ defendant-appellant Cedric K. Kikuta.ACOBA and DUFFY, JJ., and Circuit Judge WILSON, assigned by reason of vacancy; with Circuit Judge WILSON concurring separately; and NAKAYAMA, J., dissenting, with whom RECKTENWALD, C.J., joins.Opinion of the Court by ACOBA, J.
We hold that (1) an instruction on Hawai‘i Revised Statutes (HRS) § 703–309 (1993) (parental discipline defense),1 is not per se precluded by the fact that substantial bodily injury occurred; (2) as with other defenses, an instruction to the jury on the parental discipline defense must be given so long as there is some evidence in the record to support
[125 Hawai'i 81 , 253 P.3d 642]
each element of the defense, no matter how weak, inconclusive, or unsatisfactory that evidence may be; and (3) an instruction on HRS § 707–712(2) (1993) (mutual affray) must be given along with an instruction on Assault in the Third Degree, HRS § 707–712(1),2 if there is any evidence that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent. Inasmuch as there was some evidence in the record to support an instruction on the parental discipline defense, such an instruction requested by Respondent/Defendant–Appellant Cedric K. Kikuta (Respondent) was required to be given to the jury by the Family Court of the First Circuit (the court).3 Additionally, under the circumstances, it was necessary to provide the jury with a mutual affray instruction, along with the Assault in the Third Degree instruction, where there was some evidence that the injury was inflicted during a fight entered into by mutual consent.
Accordingly, the June 8, 2010 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its May 18, 2010 memorandum opinion,4 vacating the court's October 1, 2008 Judgment of Conviction and Sentence for its failure to instruct the jury on the parental discipline defense is affirmed in part, but is vacated in part as to the lack of disposition regarding a mutual affray instruction. The case is remanded for retrial.
We emphasize that our holding in no way condones the use of illegal force against minors. As acknowledged by the legislature, “ ” State v. Matavale, 115 Hawai‘i 149, 161, 166 P.3d 322, 334 (2007) . However, because a defendant is “entitled to have the trier of fact consider a defense having any support in the evidence no matter how weak, inconclusive, or unsatisfactory the evidence involved[,]” State v. Riveira, 59 Haw. 148, 153, 577 P.2d 793, 797 (1978), we consider only whether there was any evidence in the record supporting an instruction on the parental discipline and mutual affray defenses. We need not consider, today, the merits of whether Petitioner's use of force crossed the “ ‘line between physical abuse and appropriate parental discipline,’ ” Matavale, 115 Hawai‘i at 149, 166 P.3d at 334, but hold only that Petitioner was entitled to have the jury, not the court, consider those defenses under the circumstances of this case.
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).5 On June 16, 2008, Respondent was convicted by a jury for Assault in the Third Degree.
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
[125 Hawai'i 82 , 253 P.3d 643]
September 30, 2007, Complainant was sitting in the “game room” of his home watching video programs with his cousin Chad (Cousin), when Respondent entered and told Complainant to feed his dog. Complainant told Respondent that he “would do it in five minutes” and when five minutes had elapsed, he fed the dog and cleaned the dog's bowl. According to Complainant, Respondent then noticed a stain on the floor that the dog had made, and Respondent instructed Complainant to clean it up. When Complainant told Respondent that he “couldn't because it was a stain[,]” Respondent stated, “I bet I could get it out.” 6 In response, Complainant answered, “I bet you not.” Respondent then told Complainant that if Respondent was able to get the stain out, Complainant “was going to be grounded for a year.” Complainant then told Respondent that if Respondent could not, Complainant “would get to kick [Respondent] in the leg” and Respondent said “okay.” Respondent had recently had surgery on his leg and was walking with a cast that extended from his hip to the ball of his foot, with the aid of crutches.
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 act[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.”
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.]” Respondent
[125 Hawai'i 83 , 253 P.3d 644]
told Complainant that if he was able to remove the stain, Complainant would get “a year's grounding from T.V.” and Complainant would get “nothing if he [won].” But then, Complainant said, “ I get to kick you in the leg[,]” and Respondent said “all right.”
After Respondent left the room, Complainant “slam[med] the door on [Respondent].” Respondent then opened the door, “limp[ed] in kind of quickly” 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 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,...
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