State v. Pang

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 29003

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAII, Plaintiff-Appellee,
V.
CURTIS K. PANG, SR., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NO. 07-1-0415(4))

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, and Fujise, J.;
Foley, J., concurring separately)

Defendant-Appellant Curtis K. Pang, Sr., (Pang) appeals
from the Amended Judgment, entered on February 14, 2008, in the
Circuit Court of the Second Circuit (circuit court). After a
jury trial, Pang was convicted of first degree criminal property
damage, in violation of Hawaii Revised Statutes (HRS)

§ 708-820(1) (a) (Supp. 2009), and first degree terroristic
threatening, in violation of HRS § 707-716(1) (d) (Supp. 2006).

On appeal, Pang contends that the circuit court plainly
erred by not sua sponte giving the jury an instruction on self-
defense because the evidence warranted such an instruction. We
conclude that any error in failing to instruct the jury on self-
defense was harmless beyond a reasonable doubt and therefore
affirm Pang's convictions.

I.

The complaining witness for both offenses was Lawrence

Delizo (Delizo). Delizo testified that on March 7, 2007, at

approximately 10 a.m., he was sleeping in the rear passenger seat

/ The Honorable Richard T. Bissen, Jr., presided.
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

of his car at Kahana Beach when he was awakened by the shattering
of the glass window next to him. The back-seat windows of
Delizo's car consisted of a large window and a "quarter window, "
and it was the quarter window that was shattered. -

Delizo saw Pang standing outside the car, holding a
baseball bat. Pang said, "What the fuck are you doing here?" and
told Delizo to "Get the fuck out of here." Pang used the bat to

“poke Delizo through the broken window. Pang then shattered the

main back passenger window with the bat. Glass flew and hit
Delizo in the face. Delizo noticed that he was bleeding when he
looked in the rear view mirror. Delizo agreed to leave and
attempted to open the rear passenger door. Pang refused to
permit Delizo to exit the car and told Delizo to climb to the
front seat and leave. While Delizo was in the process of
complying, Pang moved to the driver's side of the car. Pang hit
the roof of the car with the bat then shattered the main rear
window on the driver's side. At some point during the incident,
Pang threatened to "kill" Delizo if he did not leave. Delizo
eventually got into the front driver's seat, started the car, and
drove away.

The prosecution introduced photographs of Delizo's car
taken by the police, which Delizo testified accurately depicted
what his car looked like on March 7, 2007, after the incident.
Delizo identified the damage to his car caused by Pang, including
the quarter window and the two main back-seat windows that Pang
had shattered as well as dents in the car's roof.

Delizo encountered Maui Police Department (MPD)
Detective Ken Prather (Detective Prather) a short time after the
incident and gave Detective Prather an account of what had
happened. Detective Prather testified that he observed blood on
Delizo's face. Detective Prather also testified that the "two
rear passenger windows" of Delizo's car were smashed, there "was

some glass within the car," and he believed there were seven
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

dents on the roof that appeared to have been made with a long,
round object, such as a bat.

Pang testified in his own defense at trial. Prior to
the incident, Pang had known Delizo for about two years. Pang
heard that Delizo was telling people he was "looking for [Pang]
to kick [Pang's] ass." On the day of the incident, Pang had
finished fishing when he saw Delizo's car parked near Pang's
tent.

According to Pang, he approached Delizo's car to ask
Delizo to leave so there would be no trouble. When Delizo opened
the rear passenger door, Pang observed that Delizo had "a shiny
piece of metal" in his hand. Pang, not knowing what the object
was and fearing for his life, slammed the door shut. The object
in Delizo's hand caused the rear passenger window to shatter.
Pang saw Delizo move to the rear driver's side of the car and
attempt to open that door. When Pang slammed that door, the
metal object caused the rear driver's window to shatter. Up
through that time, Pang did not have anything in his hands.
However, after the rear driver's window shattered, Pang picked up
a kiawe branch and hit the roof of the car "once or twice" and
told Delizo to leave. Delizo then drove away.

. Pang's trial testimony was basically consistent with an
oral statement he gave to MPD Sergeant Champ K. Wright (Sergeant
Wright) two and a half months after the incident, except that in
Sergeant Wright's recounting of Pang's statement, Pang only
referred to the rear driver's side window being shattered.
Sergeant Wright testified that Pang denied ever having a baseball
bat in his hand and denied damaging the rear passenger side
window.

II.

Pang did not request a jury instruction on self-defense
and none was given. On appeal, Pang argues that because the
evidence at trial was sufficient to warrant a self-defense

instruction, the circuit court committed plain error in failing
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

to give such an instruction. We conclude that any error in the
circuit court's failure to give a self-defense instruction was
harmless beyond a reasonable doubt.

The circuit court instructed the jury that in order for
the jury to find Pang guilty of first degree criminal property
damage, the prosecution must prove beyond a reasonable doubt that
Pang "intentionally or knowingly" damaged property and that his
conduct "recklessly placed another person in danger of death or
bodily injury." The circuit court further instructed the jury
that in order for the jury to find Pang guilty of first degree
terroristic threatening, the prosecution must prove beyond a
reasonable doubt that Pang threatened to cause bodily injury to
Delizo "with the use of a dangerous instrument, to wit, a
baseball bat."

In finding Pang guilty of these two offenses, the jury
must have rejected Pang's version of the incident and accepted
Delizo's testimony that Pang threatened Delizo and smashed the
windows of Delizo's car with a baseball bat. Otherwise, the jury
could not have found that Pang intentionally or knowingly damaged
property in a manner that recklessly placed another person in
danger of bodily injury or that Pang threatened to cause bodily
injury to Delizo with the use of a baseball bat.2/ The only
possible basis for a claim of self-defense was Pang's version of
the incident. Because the jury necessarily rejected Pang's
version in finding him guilty, there is no reasonable possibility
that any error in failing to give a self-defense instruction may
have contributed to Pang's conviction. See State v. Kuhia, 105
Hawai‘i 261, 273-74, 96 P.3d 590, 602-03 (App. 2004).

2/ We note that photographs admitted in evidence showing damage to the
post between the quarter window and main window of the rear passenger door,
which indicates impact from the outside, are inconsistent with Pang's claim
that an object held in Delizo's hand caused the window to shatter when Pang
slammed the door shut.
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IIL.
The February 14, 2008, Amended Judgment of the circuit
court is affirmed.
DATED: Honolulu, Hawai‘i, March 31, 2010.

On the briefs: (o . “UPL g

Christian G. Enright Chief Judge
Deputy Public Defender

for Defendant -Appellant Cheevw AV,

Richard K. Minatoya Associate Ju
Deputy Prosecuting Attorney

County of Maui

for Plaintiff-Appellee

CONCURRING OPINION BY FOLEY, J.

Associate Judge

I concur in the result.