State v. Best

• Decision Date: 24 January 2022
• Docket Number: CAAP-17-0000833
• Citation: 502 P.3d 1024 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Michael D. BEST, Defendant-Appellant
• Court: Hawaii Court of Appeals

502 P.3d 1024 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Michael D. BEST, Defendant-Appellant

NO. CAAP-17-0000833

Intermediate Court of Appeals of Hawai‘i.

January 24, 2022

On the briefs:

Matthew S. Kohm for Defendant-Appellant.

Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.

(By: Leonard, Presiding Judge, and Wadsworth and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Michael D. Best (Best ) was charged by Felony Information with Assault in the Second Degree (Assault 2 ), in violation of Hawaii Revised Statutes (HRS ) § 707-711(1)(a).¹ The charge stemmed from a November 6, 2016 altercation between Best and complaining witness Kurt Butler (Butler ) that took place in the rooming house where they both lived. Following a bench trial, Best was convicted of the lesser included offense, Assault in the Third Degree (Assault 3 ), in violation of HRS § 707-712.² The Circuit Court of the Second Circuit (Circuit Court )³ ruled that Best and Butler "entered into [a] fight or scuffle by mutual consent[,]" which reduced the Assault 3 conviction from a misdemeanor to a petty misdemeanor pursuant to HRS § 707-712(2).

Best appeals from the Judgment; Conviction and Sentence; Notice of Entry, entered on October 3, 2017, in the Circuit Court. On appeal, Best contends that: (1) the Circuit Court erred in not terminating the case when the court granted Best's motion for judgment of acquittal (MJOA ); (2) the Circuit Court improperly imposed a duty to retreat upon Best in considering his self-protection justification; (3) the Circuit Court failed to evaluate the self-protection justification from Best's subjective perspective; (4) the evidence was insufficient to support Best's conviction; and (5) Best was denied effective assistance of counsel.

After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Best's contentions as follows, and we vacate and remand for a new trial:

(1) Best contends that the case should have terminated when the Circuit Court granted the MJOA on the Assault 2 charge. Best asserts that, "[g]enerally, a judgment of acquittal on the charged offense is deemed to include acquittal on all uncharged lesser-included offenses unless there is prior indication that the ruling was intended to be limited."⁴ Best acknowledges that he failed to raise this issue below, but requests that this court recognize plain error.

We decline to do so. The Hawai‘i Supreme Court has made clear that under Hawai‘i Rules of Penal Procedure (HRPP ) Rule 29(a),⁵ "[w]hen a court grants a motion for a judgment of acquittal, the court must consider whether the evidence would be sufficient to sustain a conviction of an included offense." State v. Deedy, 141 Hawai‘i 208, 219, 407 P.3d 164, 175 (2017) (emphasis added) (citing 2A Charles Alan Wright, Peter J. Henning, & Sarah N. Welling, Federal Practice and Procedure § 467 (4th ed.) ; United States v. Hawpetoss, 388 F. Supp. 2d 952, 957 (E.D. Wis. 2005) ).

Here, Best orally moved for a judgment of acquittal after the State rested its case. In granting the MJOA as to Assault 2, the Circuit Court stated:

I cannot find at this stage, even with the evidence, viewing it in the light most favorable to the prosecution, that the State has sustained its burden of establishing that [Best] intentionally or knowingly caused substantial bodily injury to another, in particular, Kurt Butler, or that he recklessly caused serious or substantial bodily injury under 707-711(a) and (b).

However, the Circuit Court also considered the included offense of Assault 3 and ruled: "[T]here is evidence to support the matter going forward on [Assault 3] under [ HRS § 707-712 ] one or two as a fight or a scuffle." Thus, consistent with the supreme court's later ruling in Deedy, the Circuit Court granted the MJOA as to Assault 2, but found sufficient evidence to go forward on Assault 3 – a lesser included offense.⁶ See State v. Williams, 146 Hawai‘i 62, 64-65, 456 P.3d 135, 137-38 (2020) (stating that the defendant was charged with assault in the second degree, and found guilty of "the lesser included offense of assault in the third degree"); State v. Ito, 85 Hawai‘i 44, 45, 936 P.2d 1292, 1293 (App. 1997) ("Where there is evidence to support a finding that a defendant's conduct was reckless, third degree assault under HRS § 707–712(1)(a) is a lesser-included offense of second degree assault under HRS § 707–711(1)(a)." (citing State v. Kupau, 76 Hawai‘i 387, 391-92, 897 P.2d 492, 496-97 (1994) )). Accordingly, the Circuit Court did not err in considering whether there was "evidence to support the matter going forward on [Assault 3] ... as a fight or a scuffle."

(2) Best contends that the Circuit Court erred in evaluating his self-protection justification. He argues first that the Circuit Court improperly imposed a duty upon him to retreat.

Under HRS § 703-304 (2014), the use of force in self-protection is justified under the following circumstances:

Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.

HRS § 703-304(1) ; see HRS § 703-300 (2014) (" ‘Believes’ means reasonably believes.").

Best is correct that as a matter of generally applicable law, a person using force in self-protection need not retreat before estimating the necessity for the use of such force. See HRS § 703-304 cmt. Specifically, HRS § 703-304(3) provides:

Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.

Following trial, the Circuit Court entered findings of fact (FOFs ) and conclusions of law. Best argues that FOFs 17 and 18 improperly imposed a duty to retreat. The relevant FOFs stated:

17. The Court finds Best had the opportunity to retreat from the altercation.

18. The Court finds Best should have retreated from the altercation and called police.

FOF 18 is actually a mixed determination of fact and law. As such, it is reviewed under the "clearly erroneous" standard. See Estate of Klink ex. rel. Klink v. State, 113 Hawai‘i 332, 351, 152 P.3d 504, 523 (2007). In specifically stating that Best "should have retreated from the altercation" (emphasis added), FOF 18 effectively imposes a duty to retreat upon Best.

The State's reliance on State v. Pereira, No. 29361, 2009 WL 1763251, at *2 (Haw. App. June 23, 2009) (SDO), is misplaced. In Pereira, there was no finding or conclusion that the defendant should have retreated. Rather, the family court commented on a situation involving the defendant and the complaining witness that had been building over a four-week period and what the defendant could have done during that period. Id. In addition, the family court concluded that the defendant, having testified that he punched the complaining witness because he "just snapped," acted for reasons other than self-defense. Id. at *1-2. Under those circumstances, we declined to infer that the family court had imposed a duty to retreat upon the defendant. Id. at *2.

Here, in contrast, we do not have to "infer an improper conclusion." Id. The Circuit Court expressly found that Best "should have retreated from the altercation." In this circumstance, we conclude that the Circuit Court improperly imposed a duty to retreat upon Best, and that FOF 18 is thus clearly erroneous.

Moreover, in light of the entire record, we cannot conclude that the Circuit Court's erroneous finding was harmless beyond a reasonable doubt. See State v. Roman, 119 Hawai‘i 468, 477, 199 P.3d 57, 66 (2008). Accordingly, the conviction for Assault 3 must be set aside.

(3) Given our conclusion as to Best's second point of error, we do not reach Best's contention that the Circuit Court failed to evaluate Best's self-protection justification from his subjective perspective.

(4) Best contends that "the evidence is insufficient to support the conviction because the court relied on speculation and made unreasonable inferences." (Capitalization altered.)

An appellate court reviews the sufficiency of evidence on appeal as follows:

[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.

Williams, 146 Hawai‘i at 76, 456 P.3d at 149 (quoting State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998) ). " ‘Substantial evidence’ as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id.

To establish that Best committed Assault 3, the State was required to prove beyond a reasonable doubt that Best intentionally, knowingly, or recklessly caused bodily injury to Butler. See HRS § 707-712(1)(a). Additionally, once there was any evidence in the record that such injury was inflicted during the course of a fight or scuffle entered into by mutual consent, the State was required to prove beyond a reasonable doubt that the fight or scuffle was not entered into by mutual consent. See HRS § 707-712(2) ; State v. Henley, 136 Hawai‘i 471, 479, 363 P.3d 319, 327 (2015) (noting that the circuit court failed to...