State v. Best

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JAN-2022
07:49 AM
Dkt. 100 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
MICHAEL D. BEST, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

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

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

1/
HRS § 707-711(1)(a) (Supp. 2016) 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[.]
2/
HRS § 707-712 (2014) provides:
(1) A person commits the offense of assault in the
third degree if the person:
(continued...)
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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.

2/
(...continued)
(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.
3/
The Honorable Peter T. Cahill presided.
4/
Best cites no Hawai#i authority supporting this assertion.

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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,

5/
HRPP Rule 29(a) provides, in relevant part:

The court on motion of a defendant or of its own motion
shall order the entry of judgment of acquittal of one or
more offenses alleged in the charge after the evidence on
either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses.
6/
Best's reliance on State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991),
is misplaced. There, the defendant was charged with driving under the
influence (DUI) under former HRS § 291–4(a)(1) and (a)(2), which provided "two
alternative means of proving a single offense." Id. at 58, 61, 806 P.2d at
403, 405. Thus, the trial court "did not have the authority under HRPP 29(a)
to enter a judgment of acquittal as to less than the entire offense of DUI[.]"
Id. at 65, 806 P.2d at 407. In contrast, here, Assault 3 is a lesser included
offense of Assault 2, not an alternative means of proving a single offense.
Under HRPP Rule 29(a), the Circuit Court was authorized to enter a judgment of
acquittal as to Assault 2, and required to consider whether the evidence would
be sufficient to sustain a conviction of an included offense. See Deedy, 141
Hawai#i at 219, 407 P.3d at 175.

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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

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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.

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(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 give the
standard HAWJIC 9.21A jury instruction on mutual affray).7/
Further, once evidence of justification was adduced, the State
had the burden of disproving it beyond a reasonable doubt. See
State v. Matuu, 144 Hawai#i 510, 520, 445 P.3d 91, 101 (2019).

7/
"'Mutual affray' is a 'mitigating defense' to Assault in the Third
Degree, reducing the offense from a misdemeanor to a petty misdemeanor."
Henley, 136 Hawai#i at 479, 363 P.3d at 327 (citing State v. Kikuta, 125
Hawai#i 78, 95–96, 253 P.3d 639, 656–57 (2011)).

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Here, substantial evidence supports the Circuit Court's
conclusions that "Best did recklessly cause bodily injury to
Butler" and "Best and Butler entered into [a] fight or scuffle by
mutual consent." As to Butler's injury, the Circuit Court found
that Butler suffered broken ribs and exhibited "some indication
of a punctured lung" as a result of the altercation between Best
and Butler on November 6, 2016. Substantial evidence supports
this finding, as the State's expert witness, Dr. Turgut Berkmen
(Dr. Berkmen), testified that the X-ray images of Butler showed
two rib fractures and that they were acute, meaning recent,
fractures. When asked whether it was "fair to say that there
were two rib fractures . . . on November 6th?" Dr. Berkman
responded, "Yes." As to causation, substantial evidence supports
the court's findings that on November 6, 2016, Best and Butler
"engaged in a physical altercation[,]" and that "the injury to
Butler was caused during a mutual affray." Both Butler and Best
testified about the altercation. Butler testified, for example,
that Best "charged" him while Butler stood in his doorway; Best
"grabbed a large poster assembly . . . and started using it as a
battering ram as [Butler] was trying to close [his] door"; Best
"managed to pull [Butler] out of the room"; Best and Butler
struggled over a baseball bat and fell to the floor during the
struggle; and another tenant came out and took the bat away from
them. Best himself testified: "I then yanked [Butler] out of
his room, spun him around, and I laid him down on the ground
gently." Best also stated: "We're both holding on to the
baseball bat, and I pulled with the baseball bat. He never
released. And I spun him around, and I laid him down on the
ground, with the baseball bat in between us, him supine and me
straddling him." Dr. Beckmen testified as to the different ways
Butler's rib injuries could have occurred, including, for
example, by "two people falling down, one on top of the other[.]"
As to Best's state of mind, substantial evidence also
supports the Circuit Court's conclusion that Best acted
recklessly.8/ Because proving the requisite state of mind by

8/
HRS § 702-206 (2014) defines "recklessly" as follows:

(continued...)

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direct evidence in a criminal case is difficult, "proof by
circumstantial evidence and reasonable inferences arising from
circumstances surrounding the defendant's conduct is sufficient."
State v. Stocker, 90 Hawai#i 85, 92, 976 P.2d 399, 406 (1999)
(quoting State v. Mitsuda, 86 Hawai#i 37, 44, 947 P.2d 349, 356
(1997)) (brackets omitted). "Thus, the mind of an alleged
offender may be read from his acts, conduct and inferences fairly
drawn from all the circumstances." Id. (quoting Mitsuda, 86
Hawai#i at 44, 947 P.2d at 356). Based on the testimony
regarding the altercation, and all of the circumstances
surrounding Best's conduct, the Circuit Court fairly inferred
that Best acted recklessly in causing bodily injury to Butler.
As to Best's self-protection justification, there was
substantial evidence supporting the Circuit Court's conclusion
that "the force Best used against Butler was not justifiable."
In particular, the evidence adduced at trial supports the Circuit
Court's finding that "no immediacy existed that necessitated Best
to act in self-defense." On cross-examination, the State asked
Best, "After [Butler] sprayed you with the pepper spray, why
didn't you go back to your room?" Best responded in part that
after an earlier pepper spray incident involving Butler, Best had
told Butler that "if he ever sprayed me with pepper spray again
that I would take it from him and I would show him how to use
it." Best's testimony continued as follows:

8/
(...continued)
(a) A person acts recklessly with respect to his
conduct when he consciously disregards a substantial and
unjustifiable risk that the person's conduct is of the
specified nature.

(b) A person acts recklessly with respect to attendant
circumstances when he consciously disregards a substantial
and unjustifiable risk that such circumstances exist.
(c) A person acts recklessly with respect to a result
of his conduct when he consciously disregards a substantial
and unjustifiable risk that his conduct will cause such a
result.

(d) A risk is substantial and unjustifiable within the
meaning of this section if, considering the nature and
purpose of the person's conduct and the circumstances known
to him, the disregard of the risk involves a gross deviation
from the standard of conduct that a law-abiding person would
observe in the same situation.

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Q. [by Deputy Prosecuting Attorney:] And that's why
when he sprayed you with the pepper spray, you followed
through on going toward Mr. Butler to go get that can of
pepper spray, correct?

A. One step forward and I reached out. . . .
Q. You were going to go get that can of pepper spray.
You were going to follow through on your threat, correct?

A. Probably, yeah.

Even assuming Best subjectively believed that his use
of force was necessary, there was substantial evidence that a
reasonable person in the same situation as Best would not have
believed that his use of force was immediately necessary for
self-protection.9/ See State v. Augustin, 101 Hawai#i 127, 128,
63 P.3d 1097, 1098 (2002) ("With respect to the use-of-force
defenses, the defendant's belief must be 'reasonable[.]'").
Thus, "[v]iewing the evidence in the light most favorable to the
prosecution and in full recognition of the province of the trier
of fact," there was sufficient evidence that Best's self-
protection justification was disproved through testimony showing
a lack of immediacy. State v. Jhun, 83 Hawai#i 472, 483, 927
P.2d 1355, 1366 (1996).
On appeal, Best argues that various credibility
determinations and discounting of testimony by the Circuit Court
undermined Best's conviction. However, the record shows that the
Circuit Court found relevant portions of both Best's and Butler's
testimony regarding their altercation to be credible and to

9/
"The test for assessing a defendant's self-protection
justification pursuant to HRS § 703-304 . . . involves two prongs because HRS
§ 703-300 . . . defines 'believes' as 'reasonably believes.'" Matuu, 144
Hawai#i at 520, 445 P.3d at 101 (footnote omitted); see State v. Lubong, 77
Hawai#i 429, 433, 886 P.2d 766, 770 (App. 1994).
"Under the subjective prong the jury is required to evaluate
the use of force from the defendant's perspective. . . .
The focus is on the circumstances known to the defendant,
thus directing the jury to consider the actions of a
'reasonable person in the defendant's position under the
circumstances as he believed them to be.'" [State v. ]Pond,
118 Hawai#i [452, ]491, 193 P.3d [368, ]407 [(2008)]
(brackets, emphasis, and citation omitted). "Under the
objective prong, emphasis is placed on the reasonable person
standard so the defendant's use of force must be 'determined
from the point of view of a reasonable person.'" Id.
(brackets and citation omitted).
State v. Locken, 134 Hawai#i 376, 389, 341 P.3d 1176, 1189 (App. 2014).

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support the court's finding of guilt. See State v. Eastman, 81
Hawai#i 131, 139, 913 P.2d 57, 65 (1996) ("It is for the trial
judge as fact-finder to assess the credibility of witnesses and
to resolve all questions of fact; the judge may accept or reject
any witness's testimony in whole or in part." (citing Lono v.
State, 63 Haw. 470, 473, 629 P.2d 630, 633 (1981))). We decline
to pass upon issues regarding the credibility of witnesses and
the weight of the evidence, which are within the province of the
trier of fact — here, the Circuit Court. See Stocker, 90 Hawai#i
at 90, 976 P.2d at 404.
Upon review of the record, we conclude there was
substantial evidence that Best recklessly caused bodily injury to
Butler during the course of a fight or scuffle entered into by
mutual consent. Accordingly, the evidence was sufficient to
support Best's conviction for Assault 3 as a petty misdemeanor.
(5) Given our conclusion as to Best's second point of
error, we do not reach Best's contention that he was denied
effective assistance of counsel.
For the reasons discussed above, the Judgment;
Conviction and Sentence; Notice of Entry, entered on October 3,
2017, in the Circuit Court of the Second Circuit, is vacated, and
the case is remanded to the Circuit Court for a new trial.

DATED: Honolulu, Hawai#i, January 24, 2022.

On the briefs:
Katherine G. Leonard
Matthew S. Kohm Presiding Judge
for Defendant-Appellant.

Renee Ishikawa Delizo, Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
Sonja M.P. McCullen
Associate Judge

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