State v. Bell

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-NOV-2025
08:05 AM
Dkt. 65 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
DENO BELL, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)
Defendant Deno Bell (Bell) appeals from the July 11,

2023 Judgment of Conviction and Sentence (Judgment) entered

against him by the Circuit Court of the First Circuit, State of

Hawai i (Circuit Court).1 After a jury trial, Bell was convicted

of unlawful imprisonment in the second degree (UI2) in violation

of Hawaii Revised Statutes (HRS) § 707-722 (2014).2

1
The Honorable Fa auuga L. To oto o presided.
2
HRS § 707-722 provides, in relevant part:

§ 707-722 Unlawful imprisonment in the second degree.
(1) A person commits the offense of unlawful imprisonment in
the second degree if the person knowingly restrains another
person.

HRS § 707-700 (2014) defines the term "restrain" in relevant
part as follows:

"Restrain" means to restrict a person's movement in
such a manner as to interfere substantially with the
person's liberty:
(1) By means of force, threat, or deception . . .
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Bell raises three points of error on appeal, contending

that: (1) the Circuit Court's jury instruction on the defense of

use of force to prevent suicide was insufficient; (2) the Circuit

Court also erred in its jury instruction on the "choice of evils"

defense; and (3) the State presented insufficient evidence to

convict him of unlawful imprisonment in the second degree,

because it failed to present sufficient evidence to negate his

use of force to prevent suicide and choice of evils defenses.

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 Bell's points of error as follows:

(1) Bell argues that jury instruction on the defense

of use of force to prevent suicide or the commission of a crime

under HRS § 703-308 (2014) was insufficient, because (a) the

Circuit Court failed to instruct the jury that the State bore the

burden of proving beyond a reasonable doubt that Bell's conduct

was not legally justified by the defense, and (b) the court

failed to instruct the jury that Bell "may estimate the necessity

for the use of such force under the circumstances as he

reasonably believes them to be when the force is used, without

doing any other act that he has no legal duty to do."

HRS § 703-308 is a defense, but not an affirmative

defense. See HRS §§ 703-301(1) (2014), 701-115(3) (2014). HRS

§ 703-308 provides, in relevant part:

§703-308. Use of force to prevent suicide or the
commission of a crime. (1) The use of force upon or toward
the person of another is justifiable when the actor believes
that such force is immediately necessary to prevent the
other person from committing suicide. . . [.]

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Over Bell's objection, the Circuit Court gave a jury

instruction on the defense of use of force to prevent suicide

that failed to include an instruction that the prosecution bore

the burden of negativing the defense. In Raines v. State, 79

Hawai i 219, 225, 900 P.2d 1286, 1292 (1995), the Hawai i Supreme

Court, overruling State v. McNulty, 60 Haw. 259, 266, 588 P.2d

438, 444 (1978), held that a trial court's failure to instruct

the jury on the prosecution's burden of proof regarding a defense

affected substantial rights of the defendant, and constituted

plain error. The supreme court stated:
On second look, we hold that McNulty was incorrectly
decided. We hold further that where, as here and in
McNulty, the jury has been given instructions on a defense
other than an affirmative defense, but has not been
instructed that the prosecution bears the burden of proof
beyond a reasonable doubt with respect to negativing that
defense, substantial rights of the defendant may be affected
and plain error may be noticed.

Id. (emphasis added).

We reject the State's argument that because the jury

was instructed they must "consider all the instructions as a

whole" and was given a general instruction that the prosecution

had "the duty of proving every material element of the offense

charged beyond a reasonable doubt," there was no error. In

reversing McNulty, the supreme court in Raines rejected the

principle that a general burden of proof instruction cures a

defective instruction on a justification defense. Id.; see also

State v. Eberly, 107 Hawai i 239, 250, 112 P.3d 725, 736 (2005)

(holding "when a defendant asserts a non-affirmative defense and

adduces evidence in support thereof, the circuit court must

instruct the jury as to the prosecution's burden of proof with

respect to negativing the defense") (citations omitted).

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We also reject the State's argument that, in essence,

the erroneous jury instruction was harmless because the Circuit

Court properly instructed the jury on the choice of evils

justification defense, which was "intimately related and

inseparable." We note that the State cites no authority for this

proposition. More importantly, however, proper instruction on

one justification defense does nothing to lessen the potential

confusion and prejudice stemming from the Circuit Court's failure

to clearly instruct the jury that the State bore the burden of

proof beyond a reasonable doubt with respect to negativing the

use of force to prevent suicide justification defense.

Accordingly, we conclude that the Circuit Court erred

in the jury instruction on Bell's defense of use of force to

prevent suicide and the Judgment must be vacated on this ground.

Bell further argues that the Circuit Court reversibly

erred because the use of force to prevent suicide instruction was

deficient because it failed to instruct the jury that Bell "may

estimate the necessity for the use of such force under the

circumstances as he reasonably believes them to be when the force

is used, without doing any other act that he has no legal duty to

do." Bell bases this argument on the following language in the

use of force in self-defense justification in HRS § 703-304:
§ 703-304. 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 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) 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

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retreating, surrendering possession, doing any other act
which he has no legal duty to do, or abstaining from any
lawful action.

(Emphasis added).

Although HRS § 703-304 states it is "subject to section

703-308" (use of force to prevent suicide), it expressly applies

to the use of force upon another "when the actor believes such

force is immediately necessary for the purpose of protecting

himself against the use of unlawful force by the other person."

(Emphasis added). At trial, Bell did not present any evidence

that he believed he needed to protect himself from the use of

unlawful force by the complaining witness (CW). Accordingly,

Bell's argument lacks merit.

(2) Bell argues that the Circuit Court gave a

deficient "choice of evils" instruction because the court failed

to instruct the jury that the justification applied to the lesser

included offense of unlawful imprisonment in the second degree,

as well as the charge of kidnapping. However, the choice of

evils defense did not apply to Bell's conduct, because of the

applicability of the more specific defense of use of force to

prevent suicide, which was applicable here. See State v. Smith,

91 Hawai i 450, 463, 984 P.2d 1276, 1289 (Haw. App. 1999)

(holding that choice of evils defense did not apply pursuant to

HRS § 703-302(1)(b) where more specific self-defense

justification under HRS § 703-304 applied). Therefore, we

conclude that Bell's second point of error is without merit.

(3) Bell argues that the record lacks substantial

evidence to negate his choice of evils and use of force to

prevent suicide defenses. As noted above, the choice of evils

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defense was inapplicable; the relevant inquiry is whether there

was substantial evidence to support his conviction for UI2,

including negativing the use of force to prevent suicide defense.

On appeal, Bell fails to provide any analysis of how the evidence

was insufficient to support his conviction.

CW testified that on the night of March 11, 2022,

"every time I tried to get close at all to the door, he'd stop me

from leaving to the door, so [sic] prevent me from going out, or

if I unlocked my door, he'd lock it back." She claims she tried

multiple times to leave her apartment, but Bell prevented her

from leaving. She testified that the first time she was able to

get past the front door, Bell "dragged me back in." Bell

admitted that on March 11, 2024, he forcibly dragged CW back into

her apartment, despite her telling him "no, let me go, let me

go." There were significant differences in the witnesses'

testimony, but it was undisputed that Bell forcibly dragged CW

back into her apartment after she tried to leave. Although Bell

argued his intent was to prevent the CW from harming herself,

"[i]n a jury trial, the jury is the trier of fact and, thus, is

the sole judge of the credibility of the witnesses and the weight

of the evidence." State v. Jhun, 83 Hawai i 472, 483, 927 P.2d
1355, 1366 (1996); State v. Kikuta, 125 Hawai i 78, 93, 253 P.3d

639, 654 (2011) (stating that determining the credibility of

witnesses and weighing disputed evidence "are within the sole

province of the jury as the trier of fact"). Here, the evidence

was open to interpretation, including an interpretation that the

evidence was sufficient to negate the justification and support

the conviction.

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For these reasons, the Circuit Court's July 11, 2023

Judgment is vacated and this case is remanded to the Circuit

Court for a new trial on the charge of UI2.

DATED: Honolulu, Hawai i, November 7, 2025.

/s/ Karen T. Nakasone
Chief Judge

/s/ Katherine G. Leonard
Associate Judge

/s/ Kimberly T. Guidry
Associate Judge

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