State v. Kupau

• Decision Date: 26 November 1980
• Docket Number: No. 7205,7205
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Wendell C. KUPAU, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 250

620 P.2d 250

63 Haw. 1

STATE of Hawaii, Plaintiff-Appellee, v. Wendell C. KUPAU, Defendant-Appellant.

No. 7205.

Supreme Court of Hawai'i.

Nov. 26, 1980.

Syllabus by the Court

1. Under HRS § 701-109(4)(a), an offense is included in an offense charged in the indictment or information when it is established by proof of the same or less than all the facts required to establish the charged offense.

2. In determining whether an offense is included in the charged offense, the degree of culpability, end result and legislative scheme are some of the factors which may be considered.

3. The lesser included offense cannot have a mental state greater than or different from that which is required for the charged offense.

4. Under HRS § 701-109(4)(c), the lesser offense included in the charged offense differs only in respect that a less serious injury or risk of injury to the same person, property or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.

Carolyn M. Bain, Deputy Public Defender, Honolulu (Marie N. Milks, Deputy Public Defender, Honolulu, on the opening brief), for defendant-appellant.

Roland L. H. Nip, Deputy Pros. Atty., City & County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ. OGATA, Justice.

Defendant-appellant Wendell Kupau (hereinafter appellant) was charged with Assault in the Third Degree, in violation of HRS § 707-712. After pleading not guilty, appellant was found guilty in a bench trial of Harassment, in violation of HRS § 711-1106. Appellant was placed on six months' probation.

The uncontradicted evidence showed that the assault charge stemmed from an incident in Waikiki on the evening of July 7, 1978. The victim, Robert Turner, and his girl friend were walking ewa on the mauka sidewalk on Kalakaua Avenue. ¹ Suddenly from behind, appellant grabbed Turner by the left shoulder, spun him around and then struck a blow to Turner's chest. During the scuffle, appellant kept shouting that Turner owed him $30. Turner testified that he did not know appellant and that the blow thrown by appellant stunned him, but he felt no pain from that blow. However, Turner further testified that as a consequence of this incident, for the next two weeks, he was very nervous especially when anyone came up from behind.

As a result of Turner's testimony of no bodily injury from the blow, the prosecution midway through its case in chief, moved to amend the charge from assault in the third degree to harassment. The motion was denied. However, the trial court ruled that harassment was a lesser included offense of assault in the third degree. It is from this judgment that appellant bases his appeal.

We are of the opinion that harassment is not a lesser included offense of assault in the third degree under HRS § 701-109(4)(a) or (c). We therefore reverse the judgment of the court below.

I.

The doctrine of lesser included offenses was developed at common law. The common law definition of a lesser included offense is that the lesser must be such that it is impossible to commit the greater without also committing the lesser. Olais-Castro v. United States, 416 F.2d 1155, 1157 (9th Cir. 1969); Kelly v. United States, 370 F.2d 227, 228 (D.C.Cir.1966); 2 Wharton's Criminal Procedure, § 292 (12th ed. C. Torcia 1975).

The federal courts have adopted this common law definition which is found in Rule 31(c), Federal Rules of Criminal Procedure. Rule 31(c) states:

(c) Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or of an offense necessarily included therein if the attempt is an offense.

Under both this rule and the common law rule, the lesser offense must not require some additional element not needed to constitute the greater offense and that it is impossible to commit the greater without committing the lesser. Olais-Castro v. United States, supra; see generally, Annot. 11 A.L.R.Fed. 165.

The lesser included offense doctrine was originally developed to aid the prosecution when it failed to establish some element of the original charge. Kelly v. United States, supra ; Note, The Lesser Included Offense Doctrine in Pennsylvania: Uncertainty in the Courts, 84 Dick.L.Rev. 125, 126 (1979) (hereinafter Dickinson Note). Moreover, this doctrine has developed into an invaluable tool for the defendant and for society as well. For the defendant, the lesser included offense provides an alternative to the more serious charge. Society also benefits because fewer defendants will be released due to an acquittal on the greater offense. Dickinson Note, supra at 126.

In Hawaii, the lesser included offense doctrine has been codified in HRS § 701-109(4) which states in relevant part: ²A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.

HRS § 701-109(4) has been taken almost verbatim from the Proposed Official Draft of the Model Penal Code, § 1.07(4) (1962).

A few jurisdictions have adopted the Model Penal Code formulation of the lesser included offense doctrine. ³ See United States v. Fuller, 407 F.2d 1199 (D.C.Cir. 1968); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977).

The Pennsylvania Supreme Court in Commonwealth v. Polimeni, supra, and Commonwealth v. Garcia, supra, adopted the Model Penal Code formulation of the lesser included offense doctrine. In both Polimeni and Garcia, the court held that involuntary manslaughter was a lesser included offense of voluntary manslaughter. Applying Model Penal Code § 1.07(4), the court reasoned that since voluntary and involuntary manslaughter were part of the same statutory classification of criminal homicide, and involuntary manslaughter required a lesser degree of culpability as compared to the other homicide offenses, it concluded that involuntary manslaughter was a lesser offense of voluntary manslaughter. Commonwealth v. Polimeni, supra; Commonwealth v. Garcia, supra.

In Fuller, supra, the United States Court of Appeals found that the more precise analysis on the issue of lesser included offense was found in the Model Penal Code. The Fuller court using the federal rule and the Model Penal Code held that second degree murder was a lesser included offense of first degree felony-murder.

II.

In determining whether an offense is included in another, it is "not as simple as defining the elements of the two offenses separately and then lying them side by side." United States v. Whitaker, 447 F.2d 314, 318 (D.C.Cir. 1971). HRS § 701-109(4) requires analysis of both subsections (a) and (c) to determine whether an offense is included in another.

HRS § 701-109(4)(a) adopted the common law definition of lesser included offenses that an offense is included when it is established by proof of the same or less than all the facts required to establish the offense charged. Commentary on HRS § 701-109. The Comments to the Model Penal Code support the above notion where the drafters state, "a lesser included offense is necessarily included in a charge of the greater if the proof necessary to establish the greater offense will of necessity establish the lesser offense." Model Penal Code, § 1.08(4), Comment at p. 40 (Tentative Draft No. 5, 1956).

Recently, in State v. Feliciano, 62 Haw. ---, 618 P.2d 306 (1980), we examined the language of HRS § 701-109(4)(a) and we there held that reckless endangering in the second degree was a lesser included offense of attempted murder under this statute. We found that in applying subsection (a), the following are some of the factors which can be considered in determining whether an offense is included in the charged offense: degree of culpability, end result, and legislative scheme. Because reckless endangering had a less culpable state of mind, was in the same chapter as attempted murder and the end result produced by both crimes in that instance was the same, we concluded that reckless endangering in the second degree was properly found to be a lesser included offense of attempted murder.

Under HRS § 711-1106, one is guilty of harassment if "with the intent to harass, annoy or alarm another person, he strikes, shoves, kicks or otherwise touches a person in an offensive manner or subjects him to offensive physical contact." (Emphasis added.) See State v. Hopkins, 60 Haw. 540, 592 P.2d 810 (1979). On the other hand, one is guilty of assault in the third degree if he intentionally, knowingly or recklessly causes bodily injury to another. HRS § 707-712. (Emphasis added.) Under the facts in the instant case, it is possible to commit the crime of harassment without committing assault in the third degree. See People v. Moyer, 27 N.Y.2d 252, 265 N.E.2d 535, 317 N.Y.S.2d 9 (1970); People v. Higgins, 86 Ill.App.2d 202, 229 N.E.2d 161 (1967).

In Moyer, the New York Court of Appeals held that harassment was not a lesser included offense of assault in the third degree. The applicable statute in that case is very similar to the one in the instant case. ⁴ The New York court found the intent to harass, annoy or alarm required for harassment different from the intent to cause physical injury required in assault in the third degree and therefore the intent element in harassment was not necessary to establish its counterpart in assault. Id. at 253, 265 N.E.2d...