State v. Harris

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-JAN-2024
07:50 AM
Dkt. 78 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CALVIN LEE HARRIS, JR., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)

Calvin Lee Harris, Jr. appeals from the Judgment of
Conviction and Probation Sentence entered by the Circuit Court of
the First Circuit on October 16, 2019.1 We vacate and remand for
a new trial.
Harris was charged by complaint with felony Abuse of
Family or Household Members. A jury found him guilty of
misdemeanor Abuse of Family or Household Members. He filed this
appeal. He contends the circuit court plainly erred when
instructing the jury on self-defense.
Trial courts have a duty to properly instruct the jury.
State v. Kato, 147 Hawai#i 478, 499, 465 P.3d 925, 946 (2020).
If a jury instruction is flawed we will vacate, even without a
timely objection, if there is a reasonable possibility that the

1
The Honorable Paul B.K. Wong presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

error contributed to conviction — that is, if the erroneous
instruction was not harmless beyond a reasonable doubt. Id.
The relevant law on self-defense is:

§ 703-304 Use of force in self-protection. (1)
Subject to the provisions of this section . . . 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.
. . . .
(3) . . . [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.

Hawaii Revised Statutes (HRS) § 703-304 (2014). The self-
protection defense is limited to certain circumstances:

When the actor believes that the use of force upon or toward
the person of another is necessary for any of the purposes
for which such belief would establish a justification under
[HRS § 703-304] but the actor is reckless . . . in having
such belief or in acquiring or failing to acquire any
knowledge or belief which is material to the justifiability
of the actor's use of force, the justification afforded by
those sections is unavailable in a prosecution for an
offense for which recklessness . . . suffices to establish
culpability.

HRS § 703-310(1) (2014) (emphasis added).
The jury found Harris guilty of misdemeanor Abuse of
Family or Household Members:

(1) It shall be unlawful for any person . . . to
physically abuse a family or household member . . . .
. . . .

(5) Abuse of a family or household member . . . [is
a] misdemeanor[.]

HRS § 709-906(1), (5)(a) (2014 and Supp. 2016). The statute
doesn't specify the state of mind required for misdemeanor Abuse
of Family or Household Members. Thus, the jury could have found
Harris guilty if it found that he "intentionally, knowingly, or

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recklessly" physically abused the complaining witness (CW). See
HRS §§ 702-204, -206 (1)-(3) (2014). The jury was instructed
that if it did not find Harris guilty of felony Abuse of
Household or Family Members it must consider the included offense
of misdemeanor Abuse of Family or Household Members:

A person commits the offense of Abuse of Family or
Household Members if he intentionally, knowingly, or
recklessly physically abuses a family or household member.

There are three material elements of the offense of
Abuse of Family or Household Members, each of which the
prosecution must prove beyond a reasonable doubt.
These three elements are:

1. That, on or about April 30, 2017, in the City
and County of Honolulu, the Defendant physically abused
[CW]; and

2. That, at that time, the Defendant and [CW] were
family or household members; and

3. That the Defendant acted intentionally,
knowingly, or recklessly as to each of the foregoing
elements.

(Emphasis added.)
The jury was also instructed on the defense of self-
protection. The jury was correctly instructed that the State had
to prove beyond a reasonable doubt that the force used by Harris
was not justified. The instruction also included this
limitation:

Self-defense is not available if the prosecution
proves that:

(1) the defendant was reckless in believing that he
was justified in using deadly force or force against the
other 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 deadly force or
force.

The jury was instructed that if the State proved beyond
a reasonable doubt that Harris intentionally, knowingly, or
recklessly physically abused CW, and that Harris was reckless in

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believing that he was justified in using force against CW or was
reckless in acquiring or failing to acquire any knowledge or
belief which was material to the justifiability of his use of
force, the self-protection defense was not available to him for
the offense of misdemeanor Abuse of Family or Household Members.
But under the law, the self-protection defense was only
unavailable to Harris for reckless misdemeanor physical abuse of
CW. HRS § 703-310(1) (2014).
In State v. Culkin, 97 Hawai#i 206, 35 P.3d 233 (2001),
Culkin was charged with murder in the second degree in violation
of HRS § 707-701.5 (1993). He contended he acted in self-
defense. The jury was instructed on the included offenses of
assault in the second degree and assault in the third degree,
among others. Assault in the second degree could be committed
intentionally, knowingly, or recklessly. HRS § 707-711(1)(a),
(b) (1993). Assault in the third degree could also be committed
intentionally, knowingly, or recklessly. HRS § 707-712(1)(a)
(1993). The supreme court approved this instruction:

If and only if you find that the defendant was reckless in
having a belief that he was justified in using self-
protective force against another person, or that 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 against the other person,
then the use of such self-protective force is unavailable as
a defense to the offenses of Manslaughter, Assault in the
Second Degree based on reckless conduct, and Assault in the
Third Degree based on reckless conduct.

Id. at 216 n.8, 35 P.3d at 243 n.8 (emphasis added).
And in State v. Nupeiset, 90 Hawai#i 175, 977 P.2d 183,
(App. 1999), Nupeiset was convicted of murder in the second
degree, HRS § 707–701.5 (1993). It appears that the jury was
also instructed on the included offenses of manslaughter and
assault in the second degree. Manslaughter could be committed
intentionally or recklessly. HRS § 707-702(1)(a), (b) (1993).
Assault in the second degree could be committed intentionally,
knowingly, or recklessly. HRS § 707-711(1)(a), (b) (1993). The
supreme court approved this instruction:

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If and only if you find that [Defendant] was reckless in
having a belief that he was justified in using deadly force
against [Fuller], or that [Defendant] was reckless in
acquiring or failing to acquire any knowledge or belief
which was material to the justifiability of his use of
deadly force against [Fuller], then the use of such deadly
force is unavailable as a defense to the offenses of
Manslaughter based on reckless conduct and/or Assault in the
Second Degree based on recklessly causing serious bodily
injury to another person.

Id. at 186, 977 P.2d at 194 (bolding added).
The jury in this case should have been instructed that
the self-protection defense was unavailable to Harris for
reckless physical abuse — it would have been available to Harris
for intentional or knowing physical abuse. The State argues that
the error was harmless beyond a reasonable doubt because no
reasonable person in Harris's position could have believed it was
necessary to use force against CW. But that was a question for
the jury. The record does not show whether the jury found Harris
guilty of intentional, knowing, or reckless physical abuse of CW.
On this record, we cannot say that the instructional error was
harmless beyond a reasonable doubt. The Judgment is vacated and
this case is remanded for a new trial.

DATED: Honolulu, Hawai#i, January 11, 2024.

On the briefs:
/s/ Katherine G. Leonard
Phyllis J. Hironaka, Presiding Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Donn Fudo, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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