State v. Tuaolo

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUN-2023
07:53 AM
Dkt. 54 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
MATUA T. TUAOLO, also known as MATUA TUAOLO,
Defendant-Appellant

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

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

Defendant-Appellant Matua T. Tuaolo, also known as
Matua Tuaolo (Tuaolo), appeals from the Judgment of Conviction
and Probation Sentence (Judgment) entered on December 27, 2018,
by the Circuit Court of the First Circuit (Circuit Court).1
Tuaolo was charged with two counts of Abuse of Family
or Household Members under Hawaii Revised Statutes (HRS) § 709-
906(1) and (9) (2014) (Counts 1 and 2)2 and two counts of Assault

1
The Honorable Todd W. Eddins presided.
2
HRS § 709-906 provides, in pertinent part:

Abuse of family or household members; penalty.
(1) It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household
member or to refuse compliance with the lawful order
of a police officer under subsection (4). The police,
in investigating any complaint of abuse of a family or
household member, upon request, may transport the
abused person to a hospital or safe shelter.

(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

in the Third Degree under HRS § 707-712(1)(a) (2014) (Counts 3
and 4).3 Tuaolo was found not guilty on Counts 1 and 2. This
appeal involves Tuaolo's convictions on Counts 3 and 4. His wife
Isabella Tuaolo's (Isabella's) minor children NG and MK
(collectively, Children) were the complainants on Counts 3 and 4,
respectively.4
Tuaolo raises two points of error on appeal, contending
that: (1) the Circuit Court's "standard" jury instructions 1.1,
1.2, 1.4, 1.7, and 2.2 were prejudicially insufficient,
erroneous, and misleading and denied Tuaolo his constitutional
right to due process and a fair trial; and (2) the Circuit
Court's instructions to the jury were prejudicially insufficient,
erroneous, and misleading where it failed to instruct the jury on
self-defense as to Counts 3 and 4.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Tuaolo's points of error as follows:
The standard applicable to our review of jury
instructions is well established.
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.

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(...continued)
. . . .

(9) Where the physical abuse occurs in the
presence of any family or household member who is less
than fourteen years of age, abuse of a family or
household member is a class C felony.
3
HRS § 707-712 provides, in pertinent part:

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[.]
4
Isabella was the complainant on Counts 1 and 2.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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.

State v. Metcalfe, 129 Hawai#i 206, 222, 297 P.3d 1062, 1078
(2013) (quoting State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843,
853 (1996)).
[A]lthough as a general matter forfeited assignments
of error are to be reviewed under the [Hawai <i Rules of
Penal Procedure (HRPP)] Rule 52(b) plain error standard of
review, in the case of erroneous jury instructions, that
standard of review is effectively merged with the HRPP Rule
52(a) harmless error standard of review because it is the
duty of the trial court to properly instruct the jury. As a
result, once instructional error is demonstrated, we will
vacate, 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.

State v. Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984 (2006).
Inasmuch as "the ultimate responsibility properly to
instruct the jury lies with the trial court," if trial or
appellate counsel fail to raise an objection to an erroneous
jury instruction as to which there is a reasonable
possibility of contribution to the defendant's conviction
and which, consequently, cannot be harmless beyond a
reasonable doubt, then the instruction, by its very nature,
has affected the defendant's substantial rights—to wit, his
or her constitutional rights to a trial by an impartial jury
and to due process of law—and, therefore, may be recognized
as plain error.

State v. Uyesugi, 100 Hawai#i 442, 449, 60 P.3d 843, 850 (2002)
(brackets omitted) (quoting State v. Rapoza, 95 Hawai#i 321, 326,
22 P.3d 968, 973 (2001)).
(1) In State v. Forster, No. CAAP-XX-XXXXXXX, 2021 WL
855828 (Haw. App. Mar. 8, 2021) (SDO), this court reviewed
essentially identical challenges to the Circuit Court's
"standard" jury instructions 1.1, 1.2, 1.4, 1.7, and 2.2 and
concluded that the arguments were without merit. For the same
reasons as articulated in Forster, we conclude that Tuaolo's
first point of error is without merit. Id. at *2-6; see also
State v. Char, No. CAAP-XX-XXXXXXX, 2020 WL 7028600, (Haw. App.
Nov. 30, 2020) (SDO) (addressing a similar claim of error
involving a substituted Hawai#i Pattern Jury Instructions
Criminal (HAWJIC) instruction).
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(2) Tuaolo argues that the Circuit Court erred by
failing to instruct the jury that self-defense applied to Counts
3 and 4 because there was evidentiary support to warrant that
instruction.
HRS § 703-304 (2014) provides, in pertinent part:
Use of force in self-protection. (1) 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.

. . . .

(4) The use of force is not justifiable under this
section:

(a) To resist an arrest which the actor knows is
being made by a law enforcement officer,
although the arrest is unlawful; or

(b) To resist force used by the occupier or
possessor of property or by another person on
his behalf, where the actor knows that the
person using the force is doing so under a claim
of right to protect the property, except that
this limitation shall not apply if:

(i) The actor is a public officer acting in
the performance of his duties or a person
lawfully assisting him therein or a person
making or assisting in a lawful arrest; or

(ii) The actor believes that such force is
necessary to protect himself against death
or serious bodily injury.

As we previously stated:
Our cases have firmly established that a defendant is
entitled to an instruction on every defense or theory of
defense having any support in the evidence, provided such
evidence would support the consideration of that issue by
the jury, no matter how weak, inconclusive, or
unsatisfactory the evidence may be. However, this court has
also noted that where evidentiary support for an asserted
defense, or for any of its essential components, is clearly
lacking, it would not be error for the trial court to refuse
to charge on the issue or to instruct the jury not to
consider it.

State v. Yamamoto, 98 Hawai#i 208, 220, 46 P.3d 1092, 1104 (App.
2002) (underlined emphasis added) (quoting State v. Sawyer, 88
Hawai#i 325, 333, 966 P,2d 637, 645 (1998)).
Upon review of the evidence adduced at trial, and as
recognized by Tuaolo on appeal, the Children merely jumped in
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

between Tuaolo and Isabella during the subject incident and tried
to separate them. We conclude that the Circuit Court did not err
in concluding that there was no support in the evidence for the
defense or theory that Tuaolo believed that his alleged conduct
at issue with respect to Counts 3 and 4 was immediately necessary
to protect himself against a use of unlawful force by either or
both of the Children.
For these reasons, the Circuit Court's December 27,
2018 Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 16, 2023.

On the briefs:
/s/ Katherine G. Leonard
Jon N. Ikenaga, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge

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