State v. Ngalu, Jr.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-MAR-2021
08:08 AM
Dkt. 94 MO

CAAP NO XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PAULA SIAOSI NGALU, JR., also known as
SIAOSI NGALU, JR., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Leonard and Nakasone, JJ. with Ginoza,
Chief Judge, concurring and dissenting separately)

Defendant-Appellant Paula Siaosi Ngalu, Jr. (Ngalu)
appeals from the Circuit Court of the Second Circuit's (Circuit
Court) Amended Judgment; Conviction and Sentence (Judgment) filed
on November 20, 2019.1 Following a jury trial on Assault in the
First Degree (Assault First), Ngalu was convicted of the included
offense of Assault in the Second Degree (Assault Second) under
Hawaii Revised Statutes (HRS) § 707-711 (Supp. 2017)2 and
sentenced to a five-year term of imprisonment.

1
The Honorable Rhonda I.L. Loo presided.
2
HRS § 707-711 provides:
(1) A person commits the offense of assault in the second
degree if:
(a) The person intentionally, knowingly, or recklessly
causes substantial bodily injury to another;
(b) The person recklessly causes serious bodily injury
to another . . . .
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On appeal, Ngalu contends that the Circuit Court: (1)
erred by refusing the Defense of Others jury instruction; (2)
plainly erred by instructing the jury on Accomplice Liability;
(3) plainly erred by omitting a Mutual Affray instruction with
the Assault in the Third Degree (Assault Third) instruction; (4)
erred in denying Ngalu's motions for judgment of acquittal
(MJOA); and (5) Ngalu contends that he was denied effective
assistance of counsel and a right to a fair trial.
As explained below, because we hold that the Defense of
Others and Mutual Affray instructions should have been given, and
these errors were not harmless beyond a reasonable doubt, we
vacate and remand for a new trial.
I. BACKGROUND
The State of Hawai#i (State) charged Ngalu via Felony
Information and Non-Felony Complaint3 filed on March 9, 2018,
along with a co-defendant Foukimoana Finau4 (Finau) as principals
and/or accomplices, with Assault First in violation of HRS § 707-

3
The Felony Information charged as follows:

COUNT ONE: 18-004028-001
That on or about the 27th day of January, 2018, in the
County of Maui, State of Hawaii, FOUKIMOANA FINAU, also known as
FOU FINAU, also known as SIONE PEUAOPE FINAU, and PAULA SIAOSI
NGALU, JR., also known as SIAOSI NGALU, also known as SIAOSI
NGALU, JR., as principals and/or accomplices, did intentionally or
knowingly cause serious bodily injury to Makoanui Anzai, thereby
committing the offense of Assault in the First Degree in violation
of Section 707-710(1) of the Hawaii Revised Statutes.

"Serious bodily injury" means bodily injury which
creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.
(Bolding in original.) In Count Two, Ngalu was charged with Disorderly
Conduct, which was dismissed by the State prior to trial.
4
A separate complaint was filed in 2CPC-XX-XXXXXXX, in which Finau
was charged with Assault First and Disorderly Conduct under HRS § 711-1101(1).
See In re Estate of Kam, 110 Hawai#i 8, 12 n.5, 129 P.3d 511, 515 n.5
(2006)(appellate courts may take judicial notice of records in a related case
not appearing in the record on appeal). Finau entered a no contest plea to a
lesser charge of Assault Second and was sentenced to five years imprisonment.
The Disorderly Conduct charge was dismissed.

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710(1), for intentionally or knowingly causing serious bodily
injury to Makoanui Anzai (Anzai).
The following facts were adduced at a jury trial, which
commenced on March 12 through March 15, 2019, when the jury
returned its verdict. The incident giving rise to the assault
charge in this case occurred in the parking lot outside Lava's
Bar and Grill (Lava's), a nightclub in Kīhei, Maui, on January
27, 2018, shortly after Lava's closed at 1:30 a.m. Lava's is
located within a complex with multiple bars and nightclubs known
as "Triangles" or "The Triangle." Prior to the assault incident
in the parking lot, Anzai and Ngalu had a prior confrontation in
Lava's at around 11:30 p.m., when Ngalu confronted Anzai about
staring at Ngalu and disrespecting his fiancée. Bouncers
intervened, Ngalu and his fiancée left Lava's, and were
socializing with friends in the parking lot until Lava's closed.
After Lava's closed, around a hundred Lava's patrons exited the
bar, including Anzai. In the parking lot, Ngalu confronted Anzai
a second time, and the encounter turned physical. The witnesses'
testimonies were conflicting about the sequence of events in the
parking lot confrontation between Anzai and Ngalu, and the role
of Finau in the confrontation. Anzai claimed that he was
assaulted by two men, and was struck a total of three times --
the first time in the face, the second time in the jaw, and the
third time being kicked to the head after he had fallen to the
ground. Testimony varied between the witnesses as to how, by
whom, and when Anzai was struck. With the exception of Ngalu's
fiancée, the other eyewitnesses and parties all had been
drinking. Anzai suffered a broken jaw from the confrontation,
was flown to Queen's Medical Center in Honolulu for surgery for
his jaw, and still experienced the effects of his injury at the
time of trial.
Testimony of complainant Anzai

Anzai arrived at Lava's around 11:30 p.m. with friends,
dressed in a black jacket and black pants. Anzai was 6'3" tall
and weighed about 360 pounds. While at the bar, Anzai consumed

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two beers and two mixed drinks. He had an initial confrontation
with Ngalu inside the bar. He did not know Ngalu and had never
seen him before, and described Ngalu as "aggressive." Some
bouncers escorted Ngalu and his friends downstairs, but Anzai was
not asked to leave. Anzai stayed at Lava's for another 30-45
minutes until the bar closed, and he left. In the parking lot,
Ngalu confronted Anzai again, and Anzai told Ngalu that he didn't
know Ngalu or Pagan, told Ngalu he was not "disrespecting"
anyone, and offered to shake Ngalu's hand. Ngalu refused to
shake hands and just stared at Anzai. About thirty to forty
people were in the parking lot at this time. Anzai turned away
from Ngalu to walk towards a friend's car, when he was hit in the
face from behind, which felt like a "big sting." He did not see
who had hit him. As Anzai turned to see who had hit him, Anzai
heard someone yell, "Fou, what are you doing?"5 and he was hit a
second time in the jaw, by Ngalu. With the second hit, Anzai
felt and heard a "crack" to his jaw and believed his jaw was
broken. He lost his balance, and began to fall. Ngalu kicked
Anzai on the right side of his face as Anzai fell. This was same
side of the face that Ngalu had struck earlier. Anzai remained
on the ground for ten seconds before standing up, holding his
"hanging" jaw, and was in a lot of pain. Anzai saw Ngalu
standing over him after he fell down, and also saw Finau
lingering around. Anzai gave a statement to the responding
police officer. Anzai denied telling the police officer that he
was first approached by Finau instead of Ngalu, or that Finau
said Anzai was disrespecting Ngalu's fiancée. Anzai did not try
to fight back or hit anyone. Anzai's friend drove him to the
hospital, and Anzai was later flown to Queen's Hospital in
Honolulu for surgery to his jaw. Anzai's jaw was wired shut for
about three months, during which time he was unable to speak, eat
solid foods, or move his jaw, resulting in a 60-pound weight
loss. He experienced loss of taste, permanent jaw nerve damage,

5
Anzai recognized the name "Fou" as a nickname for Finau, who was
Anzai's younger brother's classmate.

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loss of sensation to the lower jaw, migraines, and jaw pain that
continued through the date of trial.
Testimony of Officer Kemfort

Officer Apalo Kemfort (Officer Kemfort) responded to
the parking lot area of Kīhei Kalama Village at about 1:44 a.m.,
where he saw a crowd of people "all hyped up and enraged[.]" He
found Anzai seated on the asphalt "shocked, dazed" and
"confused[.]" Anzai's mouth was bleeding and bone was sticking
out of his mouth. Anzai said two males caused his injuries,
identifying one as "Fou Finau" and the other one was unknown to
Anzai. It was difficult to understand Anzai since Anzai's mouth
would fill with blood and saliva when he tried to talk. The
officer photographed Anzai's injuries, searched for the suspects,
but was unable to find them. Officer Kemfort already knew Finau
from other cases in the Kīhei area, for underage drinking, and
causing a disturbance. The officer's written report included a
statement by Anzai, that Finau had punched him in the back of the
head and that he was kicked while on the ground. Anzai
subsequently identified Finau and Ngalu to a detective, as the
individuals who had assaulted him.
Testimony of eyewitness Jackson

Eyewitness Gabriel Jackson (Jackson) testified that he
was briefly at Lava's with two friends and had one drink, before
heading to another bar in Triangle's at about 1:00 a.m. There
were at least 30 people in the parking lot. He observed a man
dressed in black (Anzai) walking in the parking lot. Anzai was
"punched once[,]" fell to the ground, where "another person
[came] up and kick[ed] him."6 The male who punched Anzai had

6
Jackson testified as follows:

Q. Okay. What happened after that – after he got
punched?
A. Kind of just noticed him weaken. And then as he
went down, that's when the next –- it was quick. It was
kind of just right after the other. So right after he got
hit the first time, the next guy came in and he just
(continued...)

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"coppery bleached" hair, and the same male left the parking lot
afterward, heading toward South Kīhei Road. The other male who
kicked Anzai had a medium build, was wearing a "white T-shirt",
and went towards the back of the parking lot afterward. Jackson
did not recall making prior statements to the police that night,
but testified that he "maybe" said that "the person who hit"
Anzai was wearing a maroon tank top. Jackson was "pretty sure"
that the person who kicked Anzai was wearing a white shirt."
Testimony of eyewitness Fehoko

Eyewitness Denney Fehoko (Fehoko), Finau's uncle who
lived with Finau, was also at Lava's with friends that night,
where he had four beers. He left Lava's at the 1:30 a.m. closing
time to join friends in the parking lot. He heard females
yelling "stop it" and noticed a "fight" going on in the parking

6
(...continued)
kicked him, and that finished it.

Q. So you said a next guy came in.

A. Yes.

Q. Where did that guy come from?
A. I would say he came more from his left side,
came from the left side, and then that's when he gave him
the kick. And then soon after that, he just left the
scene.
Q. Okay. The second guy, was there –- did you
notice any confrontation or conversation or anything
between the person who got attacked and the second guy?

A. No.
Q. No. So did that person just also come out of
nowhere?

A. Yes.
Q. And this second guy, you –- when you first
observed the second guy, you said that's because he –- you
saw him kick –-

A. Uh-huh.

Q. –- him on the ground?
A. Right.

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lot with Anzai and Ngalu. Fehoko knew Anzai from a party, and
knew Ngalu from childhood. Anzai was on the ground, and Ngalu
was "running" to the fight, and kicked Anzai in the face. He did
not see Anzai fall. There were about 30 to 40 people in the
parking lot. He was on the other side of the parking lot, and
there were a couple of people between him and the fight. Fehoko
saw Finau walking away after the fight when the crowd dissipated,
but did not see Finau hit anyone. Finau had frosted blonde hair,
while Ngalu did not. On cross-examination, Fehoko admitted
seeing Finau running away from the area. Fehoko did not see how
the fight started. He saw Ngalu kick Anzai once, and did not see
Ngalu punch Anzai; however, in a prior police statement he said
he saw Ngalu punch Anzai once on the side of the head. From the
time of the first "screaming" until everyone dispersed, it was
"pretty quick" and "fast."
Ngalu's statement to the police

Ngalu gave a statement to a police detective on
February 14, 2018, a few weeks after the incident. The recorded
statement was played for the jury, in which Ngalu recounted the
following details about the second confrontation with Anzai in
the parking lot. As Ngalu and Anzai were speaking, Finau
approached Anzai from the right rear side and punched Anzai on
the right side of the face. Ngalu did not know that Finau had
been there. Anzai then punched Ngalu, a female hit Ngalu on the
back, and Ngalu then punched Anzai on his head, causing Anzai to
fall. Ngalu told his fiancée, "Let's go," and they left. When
Anzai was on the ground, Finau punched him. Ngalu felt that
Anzai hit Ngalu, probably thinking that Ngalu was the one who hit
him. In total, Ngalu punched Anzai once, and Finau punched Anzai
"a couple times." Ngalu hit Anzai only one time, and denied
kicking Anzai or seeing anyone kick Anzai. Ngalu said Finau was
"like family" but he rarely saw Finau. Ngalu denied being with
Finau at the time of the incident, and said Finau showed up
randomly.

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Physician's testimony
The Maui Memorial Hospital emergency room physician who
treated Anzai on the night of the incident diagnosed a jaw
fracture. CT scans were done for Anzai's head, neck, and face,
and Anzai was then transferred to Queen's Medical Center to be
treated by a oral maxillary facial surgeon. Anzai's jaw was
broken in three different parts, with only soft tissue holding
his jaw in place. Anzai's injuries were consistent with "a great
deal of force to the face[,]" and could have resulted from one
hit, two hits, or a fall to the ground, but were not consistent
with being struck on the back of the skull. The doctor opined
that a "hit alone to the top of the head without any other
extenuating circumstances" could not cause the type of fracture
Anzai sustained, but "force to the top of the head and a
subsequent fall" could possibly cause that type of fracture. A
large person could cause this degree of damage with one hard hit
to the face. If enough force were applied to the right side of
the mandible, it could cause a break in the left portion. At a
subsequent examination a week prior to trial, on March 5, 2019,
Anzai still suffered numbness and nerve damage at the injury
site, altered sense of taste and difficulty with the bottom right
side of his face. The doctor opined, to a reasonable medical
probability, that these symptoms were due to the injury Anzai
sustained on January 27, 2018.
Denial of MJOA

After the State's case-in-chief, Ngalu moved for a
Judgment of Acquittal, which was denied.
Testimony of Pagan (Ngalu's fiancée)
Ngalu's fiancée Kaylee Sylva Pagan (Pagan) accompanied
Ngalu, along with friends, to Lava's at around 11:00 p.m. Ngalu,
who was six feet tall and weighing about 300 pounds, wore a
maroon shirt, shorts and slippers. Finau was an acquaintance of
Ngalu and not his friend. Pagan described Finau as "not a real
pleasant person to be around[,]" and that Finau was a drug user
and liked to "get in trouble[.]" Ngalu had at least seven drinks

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that evening, consuming three at a friend's house before heading
to Lava's, followed by three to four beers in twenty to thirty
minutes at Lava's. Pagan was not drinking. Pagan noticed Anzai
staring at her and Ngalu, and his glaring made her feel
uncomfortable because she did not know why Anzai was staring at
them. She and Ngalu ended up leaving Lava's after 20 to 30
minutes, following Ngalu's confrontation with Anzai. Pagan and
Ngalu stayed in the parking lot area where her car was parked,
talking with their friends. At closing time, when people began
leaving the bars, there was a second confrontation in the parking
lot between Ngalu and Anzai, when Finau "came out of nowhere" and
struck Anzai on the right side of his jaw. Pagan stood behind
Ngalu because she was afraid of getting hurt by Anzai and by the
crowd around them.7 A female came from behind and hit Pagan's
hand, saying she was trying to get to "Makoa" (Anzai's first
name). After exchanging words with the female, Pagan turned to
see Ngalu standing by her, with Finau "coming out of a hit" and
Anzai "dropping to the ground." She did not see Ngalu hit Anzai,
but she was distracted by the female who hit her. Pagan told
Ngalu that she had been hit. Pagan denied that Ngalu ran up to
the fight, and said the crowd swarmed them and pushed them
towards the fight.

7
Pagan testified in relevant part as follows:
A. . . . that's when Fo [Finau] came out of nowhere and
had hit him on the right side of his jaw. And at that point, I
was standing kind of behind [Ngalu] and holding onto his arms
because I was scared and I didn't feel – I didn't feel safe.
Q. You were scared. What were you scared of?

A. I was scared of getting hurt. I was scared of him
getting hurt.

Q. Getting hurt by whom?
A. By Makoa, by the crowd. There was a crowd around us.
I didn't want someone from the crowd to swing at us .
. . .

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Testimony of Ngalu

Ngalu testified that he and Pagan left Lava's because
Anzai's staring made them uncomfortable, and he and Anzai
exchanged words about it at Lava's. Ngalu had two to three beers
prior to arriving at Lava's, and then three to four beers at
Lava's. Outside in the parking lot, Ngalu confronted Anzai a
second time after Lava's closed, because Anzai was staring at
them again as he was leaving. Ngalu was six feet tall, but Anzai
was taller than him. Ngalu denied being loud, aggressive or
confrontational with Anzai. Ngalu knew that Anzai was dating
Ngalu's ex-girlfriend and believed that may be why Anzai did not
like him. Ngalu claimed he confronted Anzai not to start a
fight, but because it was a small island, they would likely run
into each other again, so he wanted to clear the air and "squash"
the situation. He denied that Anzai tried to shake his hand.
Anzai told Ngalu he did not know Ngalu, and Anzai turned to walk
away. Ngalu also turned to rejoin Pagan and their group of
friends.
At that moment, Finau "came out of nowhere and whacked
[Anzai]." Anzai then turned and hit Ngalu on the chest with a
closed fist. Ngalu then hit Anzai on top of his head as a
"natural reaction[.]" Finau then punched Anzai a second time and
Anzai fell to the ground. Ngalu denied kicking Anzai. Finau was
not part of Ngalu's group of friends. As Finau hit Anzai, Pagan
pulled Ngalu back and told him that she had been hit. Ngalu
explained, "I wanted to leave because I didn't want to get hit
again or I didn't want her to get hit so we turned around and
walked away." Ngalu denied hitting Anzai in the jaw, and said he
hit Anzai only one time. Ngalu agreed that between himself and
Finau, the two of them against Anzai, that Anzai was punched in
the face three times. A large crowd in the parking lot
surrounded them, trying to see the fight. The crowd was close,
within arm's length. There were two or three other fights
happening at the same time. When asked if he intended to hurt

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Anzai, Ngalu testified:
A. No. I was trying to protect myself. I
was trying to protect myself protect my fiancee. She
was behind me and it was -- so I guess to give me
time to back up -- even I didn't know what -- if he
was going to hit me again or if someone else was
going to hit my fiancee. It was kind of a reaction
because I had gotten hit.

Ngalu did not know why Finau "false'd" Anzai, but had previously
seen Finau start a fight for no reason. Finau was related to
Ngalu, but Ngalu considered Finau to be more of an acquaintance,
and did not associate with Finau, because "anyone that associates
with him is trouble also."
Denial of renewed MJOA

After the defense rested its case-in-chief, the Circuit
Court denied Ngalu's renewed MJOA.
Jury instructions

Along with the jury instruction on the charged offense
of Assault First, the Circuit Court instructed the jury on the
included offenses of Assault Second and Assault Third. The
included offense instruction for Assault Third was in Instruction
No. 18, as follows:
If and only if (1) you find the Defendant PAULA SIAOSI
NGALU, JR., also known as SIAOSI NGALU, also known as SIAOSI
NGALU, JR. not guilty of Assault in the First Degree, or you
are unable to reach a unanimous verdict as to Assault in the
First Degree, and in addition (2) you find the Defendant not
guilty of both of the alternatives of Assault in the Second
Degree, or you are unable to reach a unanimous verdict as to
both of the alternatives, or you find the Defendant not
guilty of one of the alternatives and are unable to reach a
unanimous verdict as to the other alternative, then you must
consider whether the Defendant is guilty or not guilty of
the included offense of Assault in the Third Degree as a
principal and/or accomplice.
A person commits the offense of Assault in the Third
Degree if he intentionally, knowingly, or recklessly causes
bodily injury to another person.
There are two material elements of the offense of
Assault in the Third Degree, each of which the prosecution
must prove beyond a reasonable doubt.

1. That on or about January 27, 2018, in the County
of Maui, State of Hawaii, the Defendant caused
bodily injury to Makoanui Anzai; and

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2. That the Defendant did so intentionally,
knowingly, or recklessly.

An instruction for Assault in the Third Degree by Mutual Affray
(Mutual Affray) was not requested by the defense, nor given by
the court sua sponte.8 The jury instruction for Defense of
Others When Deadly Force Is Not At Issue (Defense of Others)9 was

8
Hawai#i Standard Jury Instructions Criminal (HAWJIC) 9.21A
provides:
If you find that the prosecution has proven the
offense of Assault in the Third Degree beyond a
reasonable doubt, then you must also consider whether
the fight or scuffle was entered into by mutual
consent, whether expressly or by conduct.

You must determine whether the prosecution has proven beyond
a reasonable doubt that the fight or scuffle was not entered
into by mutual consent. This determination must be
unanimous and is to be indicated by answering 'Yes' or 'No'
on a special interrogatory that will be provided to you.

See HRS § 707-712(1)(a) (2014).
9
Ngalu requested the following jury instruction on Defense of
Others, which is based on HAWJIC 7.02B:

Defense of others is a defense to the charges of
Assault in the First Degree, Assault in the Second Degree,
Assault in the Third Degree. The burden is on the
prosecution to prove beyond a reasonable doubt that the
force used by the defendant was not justifiable. If the
prosecution does not meet its burden, then you must find the
defendant not guilty.

The use of force upon or toward another person is
justifiable to protect a third person if, under the
circumstances as the defendant reasonably believes them to
be, the third person would be justified in using force to
protect herself on the present occasion against the use of
unlawful force by the other person and the defendant
reasonably believes that his intervention is immediately
necessary to protect the third person. The reasonableness
of the defendant's belief that the use of force was
immediately necessary shall be determined from the viewpoint
of a reasonable person in the defendant's position under the
circumstances of which the defendant was aware or as the
defendant reasonably believed them to be. The defendant may
estimate the necessity for the use of force under the
circumstances as he reasonably believes them to be when the
force is used, without retreating. The defendant's belief
that the use of force was immediately necessary may be
mistaken, but reasonable.

(continued...)

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not given over objection by defense counsel:

THE COURT: [...]
7.02B, the Court is going to refuse that.

[Defense counsel], the second -- the second
version that you submitted, 7.02B, the most -- the newest
version, most recent version, do you want to -- the Court
is refusing this. Do you want to say anything regarding
your 7.02B, the most recent version?
[DEFENSE COUNSEL]: The objection that I have to
it being denied is that I do believe that there is
evidence to support a defense of others instruction for
the jury.
THE COURT: [Prosecutor]?

[PROSECUTOR]: The State believes that
there's no scintilla of evidence, namely -- well, the
defendant himself testified that the reason that he hit

9
(...continued)
"Force" means any bodily impact, restraint, or
confinement, or the threat thereof.

"Unlawful force" means force which is used without the
consent of the person against whom it is directed and the
use of which would constitute an unjustifiable use of deadly
force or force. A person cannot consent to the infliction
of death, serious bodily injury, or substantial bodily
injury.

"Serious bodily injury" means bodily injury which
creates a substantial risk of death or which causes serious
permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.

"Substantial bodily injury" means bodily injury which
causes: A major avulsion, laceration, or penetration of the
skin, a bone fracture, a tearing, rupture, or corrosive
damage to the esophagus, viscera, or other internal organs.
"Bodily injury" means physical pain, illness, or any
impairment of physical condition.

Defense of others is not available for the offense of
Assault in the Third Degree if the prosecution proves that:
(1) the defendant was reckless in believing that
he/she was justified in using deadly force or force to
protect a third person against another person; or

(2) the defendant was reckless in acquiring or failing
to acquire any knowledge or belief which was material to the
justifiability of his use of force to protect a third person
against another person.

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the victim, Makoa, was because Makoa hit him first after
Finau hit him and that it was a natural reaction. The --
he never testified that the reason that he hit Makoa was
to defend his girlfriend. His girlfriend testified in
this case, and she never testified that she was directly
threatened by Makoa nor did she testify that she -- that
he hit her or that she herself felt the need to defend
herself. So the State doesn't believe that this applies
in this case.
. . . .
THE COURT: No? Okay.

The Court agrees as well that there appears
to have been no evidence regarding defense of others, so
the Court is going to refuse the most recent, 7.02B,
submitted by defense.

Verdict, sentencing, appeal
Following the Circuit Court's instructions to the jury
and closing arguments on March 15, 2019, the jury returned a
verdict the same day, finding Ngalu guilty of the included
offense of Assault Second in the first alternative for
intentionally, knowingly, or recklessly causing substantial
bodily injury to Anzai, as principal or accomplice to Finau.
Ngalu was sentenced on November 20, 2019, and thereafter timely
filed a notice of appeal.
On appeal, Ngalu contends that the Circuit Court (1)
erred when it refused his request to instruct the jury on the
Defense of Others; (2) plainly erred in instructing the jury on
Accomplice Liability; (3) plainly erred in omitting a Mutual
Affray instruction with the Assault Third instruction; (4) erred
in denying Ngalu's MJOA and renewed MJOA; and (5) Ngalu contends
that he was denied effective assistance of counsel and a right to
a fair trial. Because we vacate and remand for a new trial based
on instructional errors, we do not reach Ngalu's point of error
regarding ineffective assistance of his trial counsel.10

10
During cross-examination of the detective about the photographic
lineup, defense counsel attempted to ask about a notation made by Anzai in the
comment section of the photographic lineup, but the Circuit Court sustained
the State's hearsay objection. Ngalu claimed that his counsel's failure to
prepare for this questioning, as well as the failures to preserve the
instructional errors he now raises on appeal, constituted ineffective
(continued...)

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II. STANDARD OF REVIEW
A. Jury Instructions
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. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial. Error is not to be viewed in
isolation and considered purely in the abstract. It must be
examined in the light of the entire proceedings and given
the effect which the whole record shows it to be entitled.
In that context, the real question becomes whether there is
a reasonable possibility that error may have contributed to
conviction. If there is such a reasonable possibility in a
criminal case, then the error is not harmless beyond a
reasonable doubt, and the judgment of conviction on which it
may have been based must be set aside.

State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)
(brackets omitted) (quoting State v. Gonsalves, 108 Hawai#i 289,
292-93, 119 P.3d 597, 600-01 (2005)) (citations omitted).
"[E]rroneous jury instructions may be grounds for reversal
despite counsel's failure to object at trial because it is
ultimately the trial court that is responsible for ensuring that
the jury is properly instructed." State v. Kikuta, 125 Hawai#i
78, 95, 253 P.3d 639, 656 (2011) (citing Nichols, 111 Hawai#i at
335, 141 P.3d at 982) (brackets and internal quotation marks
omitted). "[O]nce instructional error is demonstrated," the
reviewing court will vacate the judgment "without regard to
whether timely objection was made, if there is a reasonable
possibility that the error contributed to the defendant's
conviction, i.e., that the erroneous jury instruction was not
harmless beyond a reasonable doubt." Id. (citations, brackets
and internal quotation marks omitted).
B. Motion for Judgment of Acquittal
The standard to be applied by the trial court in
ruling upon a motion for a judgment of acquittal is whether,
upon the evidence viewed in the light most favorable to the
prosecution and in full recognition of the province of the

10
(...continued)
assistance of counsel.

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trier of fact, a reasonable mind might fairly conclude guilt
beyond a reasonable doubt. An appellate court employs the
same standard of review.

State v. Hicks, 113 Hawai#i 60, 69, 148 P.3d 493, 502 (2006)
(quoting State v. Maldonado, 108 Hawai#i 436, 442, 121 P.3d 901,
907 (2005)).
III. DISCUSSION
A. The Circuit Court erred by refusing to
instruct the jury on the Defense of Others
jury instruction where there was support in
the evidence to do so.

Ngalu contends that the Defense of Others instruction
should have been given at trial because there was more than a
scintilla of evidence to support giving the instruction. The
State responds that the instruction was correctly refused under
HRS § 703-305(1)(a), because there was no evidence showing that
Pagan needed protection from Anzai or that Ngalu believed
circumstances were such that Pagan needed protection from Anzai.
"It is well-established that a defendant is entitled to
an instruction on a defense having any support in the evidence,
no matter how weak, unsatisfactory, or inconclusive the evidence
might have appeared to the court." Kikuta, 125 Hawai#i at 90,
253 P.3d at 651 (citations omitted). HRS § 703-305 (2014),
entitled "Use of force for the protection of other persons"
provides:
(1) Subject to the provisions of this section and of section
703-310, the use of force upon or toward the person of
another is justifiable to protect a third person when:
(a) Under the circumstances as the actor believes them
to be, the person whom the actor seeks to protect
would be justified in using such protective force; and
(b) The actor believes that the actor's intervention
is necessary for the protection of the other person.

In this case, there was evidence to support an
instruction on the Defense of Others. Ngalu testified that after
Finau hit Anzai, Anzai hit Ngalu, and Ngalu hit Anzai back.
Ngalu believed that Anzai mistakenly thought Ngalu had struck him

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instead of Finau. They were surrounded by a crowd and it appears
from the record that the circumstances were chaotic and volatile.
Pagan was standing behind Ngalu at about that time, and Ngalu
believed there was a chance Pagan could get hit. Ngalu claimed
he "didn't know . . . if [Anzai] was going to hit [Ngalu] again
or if someone else was going to hit [Pagan]." In striking Anzai
at that time, Ngalu explained, "I was trying to protect myself"
and "protect my fiancee.".
The Defense of Others "permits a person to use force to
protect another person when the actor believes the other person
would have been justified in using force to protect [her]self and
believes that his intervention is necessary to protect the other
person." HRS § 703-305 cmt. (2014); State v. Mark, 123 Hawai#i
205, 220, 231 P.3d 478, 493 (2010). "In other words, if the
actor knew that the third person could not reasonably believe
that the use of force was justified, the actor could not use
force in the protection of the third person." Mark, 123 Hawai#i
at 221, 231 P.3d at 494.
The record shows that there was evidence to support
Ngalu's belief that Pagan would be justified in using protective
force in light of the circumstances at the time. See HRS § 703-
305(1)(a). Prior to the incident in the parking lot, Pagan was
already uncomfortable from Anzai's staring at her and Ngalu
inside of Lava's, which led to her and Ngalu leaving the bar.
Pagan testified that when Finau "came out of nowhere" and hit
Anzai in the jaw, she stood behind Ngalu and held onto his arms
because she was scared and did not feel safe. After Finau hit
Anzai, Pagan testified that the crowd swarmed around them, and
Pagan was hit by a female who said she was trying to get to
"Makoa" (Anzai). Both Ngalu and Pagan testified that Pagan told
Ngalu she had been hit. Pagan expressed fear of Anzai,
testifying that she felt "scared of getting hurt" "[b]y Makoa"
and "by the crowd" as she stood behind Ngalu. The crowd
consisted of around 30 to 40 people who were "all hyped up,"
"enraged," "loud," "drunk," and "wild." Pagan testified that she

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was scared, nervous, and "did not feel safe in that environment"
because the crowd was "amped up around [her]." Thus, there was
evidence that Ngalu believed his intervention (of striking Anzai
after Anzai struck him), was necessary to protect Pagan as well
as himself. See HRS § 703-305(1)(b).
"[I]t is not for this court to determine whether the
testimony of one is more credible than the other." Kikuta, 125
Hawai#i at 97, 253 P.3d at 658. The threshold warranting a
Defense of Others instruction is whether there is "any support in
the evidence" for the instruction, "no matter how weak,
unsatisfactory, or inconclusive" the evidence may appear to be.
Id. at 90, 253 P.3d at 651 (emphasis added) (citation omitted).
The threshold mandating the instruction was met in this case.
The erroneous refusal of the Defense of Others
instruction was not harmless beyond a reasonable doubt. The
Circuit Court did instruct the jury on self-defense under HRS §
703-304 (2014). The jury rejected Ngalu's claim of self-defense,
and found him guilty of the lesser included offense of Assault
Second. "[I]t is possible that a defendant could be justified in
using force to protect another person, even if the defendant
himself or herself was not justified in using force for self
protection." Mark, 123 Hawai#i at 224, 231 P.3d at 497 (italics
omitted). In this case, while the jury may have reasonably
concluded, based on the facts it found, that Ngalu was not
entitled to self-defense, the jury could have evaluated the
evidence differently with respect to the Defense of Others. A
Defense of Others instruction would have required the jury to
evaluate the circumstances of Ngalu's use of force against Anzai,
considering Ngalu's belief with respect to any necessity of
protecting Pagan. See HRS § 703-305. In light of the record,
there is a reasonable possibility that the omission of the
Defense of Others instruction may have contributed to Ngalu's
conviction, and the error is not harmless beyond a reasonable
doubt. See Nichols, 111 Hawai#i at 334, 141 P.3d at 981.

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B. The Circuit Court did not err in
instructing the jury on Accomplice Liability.

Ngalu contends that the Circuit Court plainly erred in
instructing the jury on Accomplice Liability under HRS § 702-222
(2014)11 because there was insufficient evidence to do so. The
State responds that the evidence was sufficient.
"In the context of the accomplice statute, the Model
Penal Code makes clear that 'intent to promote or facilitate'
means to have the conscious objective of bringing about the
commission of the offense." State v. Basham, 132 Hawai#i 97,
109, 319 P.3d 1105, 1117 (2014). "Section 702–222 requires that
to be guilty as an accomplice, a person must act with the intent
of promoting or facilitating the commission of the crime." State
v. Soares, 72 Haw. 278, 282, 815 P.2d 428, 430 (1991). "Mere
presence at the scene of an offense or knowledge that an offense
is being committed, without more, does not make a person an
accomplice to that offense." State v. Acker, 133 Hawai#i 253,
286, 327 P.3d 931, 964 (2014) (quoting HAWJIC 6.01).
In this case, there was evidence through the
testimonies of Jackson and Anzai, of Ngalu acting as an
accomplice to Finau. Jackson testified he observed Anzai being
punched and kicked by two men in quick succession. One male had
bleached hair, fitting Finau's description, and the other male
had a maroon tank top, matching Ngalu's attire. Anzai testified
that while he did not see who first hit him, he heard someone say

11
HRS § 702-222 provides:

A person is an accomplice of another person in the
commission of an offense if:
(1) With the intention of promoting or facilitating the
commission of the offense, the person:
(a) Solicits the other person to commit it;
(b) Aids or agrees or attempts to aid the other person
in planning or committing it; or
(c) Having a legal duty to prevent the commission of
the offense, fails to make reasonable effort so to do;
or
(2) The person's conduct is expressly declared by law to
establish the person's complicity.

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"Fou what are you doing" after the first hit. When Anzai turned,
he received a second hit from Ngalu. When Anzai fell, Ngalu
kicked him. While on the ground, Anzai saw Ngalu standing over
him and Finau in the area. Thus, there was circumstantial
evidence of Ngalu aiding Finau, with intent to promote or
facilitate Finau's assault of Anzai. See HRS § 702-222(1)(b).
The Circuit Court did not err in giving the Accomplice Liability
instruction. Assuming arguendo that such instruction was
erroneously given, it was harmless beyond a reasonable doubt
because there was substantial evidence of Ngalu's liability as
the principal under HRS § 702-222(1)(b).
C. The Circuit Court plainly erred by
omitting an instruction on Mutual Affray.

Ngalu contends that the Circuit Court plainly erred by
not sua sponte instructing the jury on Mutual Affray when the
Circuit Court gave the instruction for the lesser included
offense of Assault Third. The State responds that (1) there was
insufficient evidence to support a Mutual Affray instruction and
(2) even if the Circuit Court should have submitted such
instruction, any error was harmless beyond a reasonable doubt
under State v. Magbulos, 141 Hawai#i 483, 413 P.3d 387 (Ct. App.
2018)(cert. rejected by State v. Magbulos, SCWC-XX-XXXXXXX (June
21, 2018)), because the jury convicted Ngalu of the "higher"
included offense of Assault Second instead of Assault Third.
Thus, according to the State, an instruction on Mutual Affray
would not have changed the outcome of Ngalu's conviction.
"Assault in the third degree is a misdemeanor unless
committed in a fight or scuffle entered into by mutual consent,
in which case it is a petty misdemeanor." HRS § 707-712(2).
Mutual Affray "is not a lesser included offense of Assault in the
Third Degree," but is a "mitigating defense that reduces the
offense of Assault in the Third Degree to a petty misdemeanor."
Kikuta, 125 Hawai#i at 95, 253 P.3d at 657 (citing HRS § 707-
712(2)). The Kikuta court held that a trial court "must submit a

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mutual affray instruction to the jury where there is any evidence
in the record that the injury was inflicted during the course of
a fight or scuffle entered into by mutual consent, as indicated
in HAWJIC 9.21." Id. at 96, 253 P.3d at 657 (emphasis added).
"[C]onsent" includes implied consent. Id. Consent may be
"inferred from one's conduct" or may be "implied from an
individual's words, gestures, or conduct." Id. (citations,
internal quotation marks omitted). The Kikuta court determined,
from its review of the conflicting testimonies of the defendant
and complainant, that "there was some evidence adduced from which
the complainant's consent to affray may be implied" and thus, the
Mutual Affray instruction should have been given. Id.
The State's argument that the failure to give the
Mutual Affray instruction is harmless beyond a reasonable doubt
where the jury convicted Ngalu of a higher grade offense instead
of Assault Third, is without merit. In Magbulos, the ICA found
any error was harmless, where the defendant was charged and
convicted of second-degree murder, and the trial court had denied
instructions on the lower-level lesser included offenses of
Assault Second, Assault Third, and Mutual Affray. Magbulos, 141
Hawai#i at 499, P.3d at 403. The Magbulos court applied a
harmless error analysis as to the failure to instruct on lesser
included offenses "at least three levels below the second-degree
murder" for which the defendant was convicted. Id. The supreme
court in Kikuta rejected applying a lesser-included-offenses
analysis to Mutual Affray, because Mutual Affray is "not a lesser
included offense of Assault in the Second Degree, but rather, a
mitigated defense to Misdemeanor Assault in the Third Degree."
Kikuta, 125 Hawai#i at 95, 253 P.3d at 656. Therefore, Magbulos
does not apply.
In State v. Henley, 136 Hawai#i 471, 480, 363 P.3d 319,
328 (2015), where the defendant was charged with Assault Third
and the trial court did not give the Mutual Affray instruction,
the supreme court held, after reviewing the evidence and applying

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Kikuta, that "we cannot say that the omission of the mutual
affray instruction was harmless beyond a reasonable doubt, as it
is possible, on this record, that given a choice between
convicting Henley on misdemeanor Third Degree Assault and the
mitigated offense of petty misdemeanor assault, the jury could
have convicted Henley on the latter."
In this case, the totality of evidence shows that given
a choice between convicting Ngalu of the charged offense of
Assault First and the mitigated offense of Assault Third by
Mutual Affray, it is possible that the jury could have convicted
Ngalu on the latter. See id. Ngalu and Pagan claimed that the
two confrontations were precipitated by Anzai staring at them,
first at Lava's and again in the parking lot. Eyewitness Fehoko
described seeing a "fight" between Anzai and Ngalu. Ngalu
testified that he hit Anzai in response to Anzai hitting him
first, and claimed he did so to protect himself and Pagan. While
the testimony between the witnesses is conflicting regarding who
hit who first, and the sequence of events thereafter, Ngalu's
testimony constituted evidence from which Anzai's "consent to
affray may be implied." Kikuta, 125 Hawai#i at 96, 253 P.3d at
657. The threshold warranting a Mutual Affray instruction is
whether there is "any evidence in the record that the injury was
inflicted during the course of a fight or scuffle entered into by
mutual consent[.]" Id. at 95, 253 P.3d at 547 (emphasis added).
This threshold was met in this case.
On this record, we cannot say that the omission of the
Mutual Affray instruction was harmless beyond a reasonable doubt.
In this case, there were multiple factual disputes and
determinations of criminal liability between the two defendants
for the jury to resolve as factfinder. These issues included
which defendant did a specific act or acts, which act or acts
resulted in bodily injury to Anzai, the degree of the injury
sustained (bodily injury, substantial bodily injury or serious
bodily injury), and the causation for the injury of the broken

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jaw presented through the medical expert.
Ngalu claimed that Finau "false'd" Anzai, Anzai hit
Ngalu in reaction, Ngalu hit Anzai once on Anzai's head or on top
of his head, then Finau hit Anzai a second time, and Anzai fell.
Ngalu denied kicking Anzai on the ground. The doctor opined that
a "hit alone to the top of the head without any extenuating
circumstances" could not cause the type of fracture Anzai
sustained. If the jury believed Ngalu's version of events, that
Ngalu struck Anzai once at the top of his head, only after Anzai
hit Ngalu first in an implied mutual affray, and that such a "hit
alone to the top of the head" would not cause the substantial
bodily injury required for Assault Second per the doctor's
testimony, then the jury could have convicted Ngalu of the
mitigated offense of Mutual Affray if the instruction had been
given. See Henley, 136 Hawai#i at 480, 363 P.3d at 328. Because
there was a reasonable possibility that the omission of the
Mutual Affray instruction may have contributed to Ngalu's
conviction for Assault Second, we cannot say that the error was
harmless beyond a reasonable doubt. See Nichols, 111 Hawai#i at
334, 141 P.3d at 981.
D. Ngalu's remaining points of error.
Ngalu's contention that the Circuit Court erred in
denying Ngalu's MJOA at the end of the State's case, and Ngalu's
renewed MJOA at the conclusion of the evidence is without merit.
Viewing the evidence in the light most favorable to the State and
fully recognizing the province of the factfinder, a reasonable
mind might fairly conclude guilt beyond a reasonable doubt as to
the charged offense of Assault First. See Hicks, 113 Hawai#i at
69, 148 P.3d at 502. The Circuit Court did not err in concluding
that the evidence was sufficient and denying Ngalu's MJOAs. See
Hawai#i Rules of Penal Procedure Rule 29(a).
Because we vacate and remand for a new trial for the
reasons set forth above, we do not reach Ngalu's remaining point
of error regarding ineffective assistance of his trial counsel.

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IV. CONCLUSION

Based on the foregoing, we vacate the Amended Judgment,
and this matter is remanded for a new trial.
DATED: Honolulu, Hawai#i, March 9, 2021.
On the briefs: /s/ Katherine G. Leonard
Associate Judge
Dwight C.H. Lum
for Defendant-Appellant /s/ Karen T. Nakasone
Associate Judge
Gerald K. Enriques
Deputy Prosecuting Attorney
County of Maui
for Plaintiff-Appellee

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CONCURRING AND DISSENTING OPINION BY GINOZA, CHIEF JUDGE
I concur with the majority that, given the evidence in
this case, the Circuit Court erred in not instructing the jury on
two separate defenses: "Defense of Others" under Hawaii Revised
Statutes (HRS) § 703-305 (2014) and "Mutual Affray" under HRS
§ 707-712(2) (2014).1 Defense of Others is a potential defense
with respect to Assault in the First Degree (Assault One),
Assault in the Second Degree (Assault Two) and Assault in the
Third Degree (Assault Three). See generally State v. Matuu, 144
Hawai#i 510, 445 P.3d 91 (2019) (regarding conviction for Assault
One); State v. Jhun, 83 Hawai#i 472, 482, 927 P.2d 1355, 1365
(1996) (regarding conviction for Assault Two); State v. Pavao, 81
Hawai#i 142, 913 P.2d 553 (App. 1996) (regarding conviction for
Assault Three). Here, Defendant Paula Siaosi Ngalu, Jr. (Ngalu)
was charged with Assault One and convicted of Assault Two, and
therefore the failure to instruct the jury on Defense of Others
was not harmless error because Defense of Others was a potential
defense to the criminal offense on which Ngalu was convicted. In
other words, there is a reasonable possibility that the failure
to instruct the jury regarding Defense of Others contributed to
Ngalu's conviction for Assault Two. On this basis, Ngalu's
conviction must be vacated.
I respectfully dissent, however, from the majority's
conclusion that the failure to instruct on the Mutual Affray
defense was plain error, and not harmless error. See Hawai#i
Rules of Penal Procedure (HRPP) Rule 52.2 The Mutual Affray
defense applies only with respect to Assault Three, for which
Ngalu was not convicted. The jury was given an instruction on

1
I also concur that the Circuit Court did not err in giving a jury
instruction on accomplice liability.
2
HRPP 52 provides:

(a) Harmless Error. Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.

(b) Plain Error. Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the court.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the lesser included offense of Assault Three, and thus was given
the opportunity to consider whether to convict Ngalu on that
lesser included offense, but did not.3 Given these
circumstances, I conclude the Circuit Court's error in not
instructing the jury regarding the Mutual Affray defense to
Assault Three was harmless error, because there was no reasonable
possibility that this error contributed to Ngalu's conviction for
Assault Two.
In State v. Kikuta, 125 Hawai#i 78, 253 P.3d 639
(2011), the Hawai#i Supreme Court stated with regard to plain
error review of erroneous jury instructions that:
once instructional error is demonstrated, this court will
vacate the judgment of the court, without regard to whether
timely objection was made, if there is a reasonable
possibility that the error contributed to the defendant's
conviction, i.e., that the erroneous jury instruction was
not harmless beyond a reasonable doubt.
Id. at 95, 253 P.3d at 656 (citing State v. Nichols, 111 Hawai#i
327, 337, 141 P.3d 974, 984 (2006)) (internal quotation marks and
brackets omitted).
With regard to Assault Three, HRS § 707-712 provides:
HRS § 707-712 Assault in the third degree. (1) A person
commits the offense of assault in the third degree if the
person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty misdemeanor.

(Emphasis added).
In Kikuta, the Hawai#i Supreme Court held that the
Circuit Court committed plain error for failing to give a Mutual
Affray instruction with respect to the offense of Assault Three,
where there was evidence to support the Mutual Affray instruction
and there was a reasonable possibility that error contributed to
the conviction in that case. In Kikuta, the defendant was

3
The jury was instructed on the charged offense of Assault One, as
well as the lesser included offenses of Assault Two and Assault Three.

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convicted of Assault Three.4 125 Hawai#i at 81, 253 P.3d at 642.
The defendant did not request an instruction on the Mutual Affray
defense, and none was given. Id. at 86, 253 P.3d at 647. The
Hawai#i Supreme Court explained that Mutual Affray was a
mitigating defense to Assault Three, stating:
HRS § 701–115(1) (1993) provides in relevant part that "[a]
defense is a fact or set of facts which negatives penal
liability." (Emphasis added.) HRS § 707–712(1) sets forth
the offense of Assault in the Third Degree. HRS § 707–712(2)
provides that Assault in the Third Degree will generally be
a "misdemeanor unless committed in a fight or scuffle
entered into by mutual consent," in which case, it is "a
petty misdemeanor." The commentary on HRS § 707–712
similarly explains that "Assault in the third degree ... is
treated as a misdemeanor[,]" but "is reduced to a petty
misdemeanor if the harm is inflicted in a fight or scuffle
entered into by mutual consent." (Emphasis added.) Thus, HRS
§ 707–712(2) "provide[s] a defense which mitigates that
crime from a misdemeanor to a petty misdemeanor when the
assault is committed during a fight or scuffle entered into
by mutual consent." State v. Coyle, 71 Haw. 165, 167, 785
P.2d 1320, 1320 (1990) (emphasis added). In other words,
mutual affray is a mitigating defense that reduces the
offense of Assault in the Third Degree to a petty
misdemeanor.
Id. at 95-96, 253 P.3d at 656-57 (underline emphasis added).
Under the circumstances in Kikuta, the Hawai#i Supreme Court held
that the erroneous failure to instruct the jury on the Mutual
Affray defense required that the judgment be vacated "because
there is a reasonable possibility that the error contributed to
[Kikuta's] conviction for misdemeanor assault in the third
degree." Id. at 97, 253 P.3d at 658 (internal quotation marks
and citation omitted) (emphasis added).
In a subsequent case, State v. Henley, 136 Hawai#i 471,
363 P.3d 319 (2015), the Hawai#i Supreme Court again held that
the Circuit Court plainly erred in failing to instruct the jury
on the Mutual Affray defense. In that case, Henley was charged
and convicted of Assault Three. Id. at 473, 476, 363 P.3d at
321, 324. The Circuit Court instructed the jury on the offense
of Assault Three, but did not give an instruction on the Mutual

4
In terms of the original charge, the opinion initially indicates
Kikuta was charged with Assault Two, but later indicates he was charged with
Assault Three. Id. at 81, 96, 253 P.3d at 642, 657. In any event, Kikuta was
ultimately convicted of Assault Three, to which the Mutual Affray defense is
applicable.

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Affray defense. Id. at 476, 479, 363 P.3d at 324, 327. Given
the evidence in that case, the Hawai#i Supreme Court held that
there was evidence in the record that the complaining witness's
"injury was inflicted during the course of a fight or scuffle
entered into by mutual consent" and thus the Circuit Court should
have instructed the jury on the Mutual Affray defense. Id. at
480, 363 P.3d at 328. The Hawai#i Supreme Court further held:
we cannot say that the omission of the mutual affray
instruction was harmless beyond a reasonable doubt, as it is
possible, on this record, that given a choice between
convicting Henley on misdemeanor Third Degree Assault and
the mitigated offense of petty misdemeanor assault, the jury
could have convicted Henley on the latter.
Id. (citing Kikuta, 125 Hawai#i at 97, 253 P.3d at 658) (emphasis
added).
Here, as noted, Ngalu was charged with Assault One and
convicted of Assault Two. The Circuit Court instructed the jury
on Assault One, as well as the lesser included offenses of
Assault Two and Assault Three. The jury thus had the opportunity
to find Ngalu guilty on any of these three offenses, and it was
not an "all or nothing approach" where the jury was required to
convict Ngalu as charged or to acquit him. See State v. Flores,
131 Hawai#i 43, 56-57, 314 P.3d 120, 133-34 (2013) (overruling
State v. Haanio, 94 Hawai#i 405, 16 P.3d 246 (2001) "to the
extent that it holds the trial court's error in failing to give
included offense instructions is harmless if the defendant was
convicted of the charged offense or of a greater included
offense.") (emphasis added). Here, given the option of
convicting Ngalu of three separate offenses, the jury convicted
Ngalu of Assault Two. In light of the holdings in Kikuta and
Henley, I agree with the majority that because there is evidence
in the record to support a Mutual Affray defense instruction,
such an instruction should have been given. However, given that
the jury was instructed on the offense of Assault Three but Ngalu
was not convicted of Assault Three -- which is distinguishable
from Kikuta and Henley -- I conclude the failure to give the
Mutual Affray defense instruction was harmless error.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

For these reasons, I respectfully concur in part, and
dissent in part. I would vacate the Circuit Court's Amended
Judgment; Conviction and Sentence based on the failure to
instruct the jury on the Defense of Others defense, but not based
on the failure to provide a Mutual Affray defense instruction.

/s/ Lisa M. Ginoza

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