State v. Koutsoubinas

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-AUG-2024
08:19 AM
Dkt. 126 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee, v.
CHARLES KOUTSOUBINAS, Defendant-Appellant.

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

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

Defendant-Appellant Charles Koutsoubinas appeals from

the Circuit Court of the Second Circuit's June 9, 2023 Judgment 1

convicting him of Assault in the First Degree, in violation of

Hawai‘i Revised Statutes (HRS) § 707-710 (2014). Koutsoubinas

also appeals from the circuit court's July 18, 2023 "Order

Denying Defendant's Motion for Mistrial" (Order Denying Motion

for Mistrial). 2

1 The Honorable Christopher M. Dunn presided.

2 The Honorable Michelle L. Drewyer presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

On appeal, Koutsoubinas raises nine points of error, 3

however, his challenge to the jury instruction is dispositive.

The challenged instruction provided an additional means for the

State to disprove justification not provided in the statute.

Thus, the jury instruction was wrong, and there was a reasonable

possibility this error may have contributed to Koutsoubinas'

conviction.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below, and vacate and remand for further

proceedings.

Relying on In re DM, 152 Hawai‘i 469, 526 P.3d 446

(2023), Koutsoubinas contends the instruction on deadly force

wrongly included the word "immediately." 4 In a conclusory

fashion, Koutsoubinas claims he was prejudiced.

3 Koutsoubinas raises the following nine points of error: (1) the
judgment wrongly reflects Assault in the First Degree; (2) the State secretly
destroyed exculpatory evidence; (3) the State secretly placed a prosecutor's
spouse on the jury; (4) the instruction on self-defense was misleading and
prejudicial; (5) his right to confrontation was violated; (6) a defense
witness was improperly attacked for asserting her right to remain silent;
(7) the circuit court clearly erred in denying his proposed findings of fact;
(8) the circuit court erred in denying his proposed conclusions of law; and
(9) the State committed prosecutorial misconduct during closing arguments.

Koutsoubinas correctly asserts that the judgment wrongly reflects
Assault in the First Degree when he was found guilty of Assault in the Second
Degree. This is a clerical error that should be rectified. But, based on
our decision today, we need not address the remaining points of error.

4
Koutsoubinas raises no point of error as to the instruction on
defense of others.

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The trial court is ultimately responsible for properly

instructing the jury. State v. Nichols, 111 Hawai‘i 327, 335,

141 P.3d 974, 982 (2006). "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." State v. Metcalfe, 129 Hawai‘i

206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted).

"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." Id.

(citation omitted).

"[T]he real question becomes whether there is a

reasonable possibility that error might have contributed to

[the] conviction." Nichols, 111 Hawai‘i at 334, 141 P.3d at 981

(citation omitted). "[O]nce 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." Id. at

337, 141 P.3d at 984.

For self-defense, "[t]he use of deadly force is

justifiable . . . if the actor believes that deadly force is

necessary to protect himself against death, serious bodily

injury, kidnapping, rape, or forcible sodomy." HRS § 703-304(2)

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(2014). Recently, the Hawai‘i Supreme Court noted that the

Hawai‘i Standard Jury Instructions (HAWJIC) 7.01A misstates HRS

§ 703-304(2) by inserting "immediately" before "necessary." DM,

152 Hawai‘i at 477 n.13, 526 P.3d at 454 n.13.

In this case, the jury instruction for self-defense

tracked HAWJIC and included "immediately" before "necessary":

The use of deadly force upon or toward another person
is justified if the defendant reasonably believes that
deadly force is immediately necessary to protect himself on
the present occasion against death, serious bodily injury,
kidnapping, rape, and/or forcible sodomy. The
reasonableness of the defendant's belief that the use of
protective deadly force was immediately necessary shall be
determined from the viewpoint of a reasonable person in the
defendant's position under the circumstances of which the
defendant was aware or as the defendant reasonably believed
them to be when the deadly force was used.

(Emphases added.)

Because the jury instruction in this case required

that the use of deadly force be "immediately necessary" as

opposed to "necessary," the instruction did not accurately

reflect the law. Thus, the instruction was wrong and

presumptively harmful.

We must now determine whether there was a reasonable

possibility this error may have contributed to Koutsoubinas'

conviction.

For Assault in the Second Degree, the State had to

prove beyond a reasonable doubt that Koutsoubinas intentionally,

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knowingly, or recklessly caused substantial bodily injury, or

that he recklessly caused bodily injury, to the complaining

witness (CW). HRS § 707-711(1)(a) and (1)(b) (Supp. 2018). And

the State would also have to disprove justification. HRS § 702-

205 cmt. (2014); HRS § 703-304(2).

Based on the evidence in the record, Koutsoubinas'

conviction of Assault in the Second Degree appears to depend on

whether his use of deadly force was justified. Koutsoubinas

testified he saw CW grab his girlfriend between the legs, slam

her to the ground, and run straight towards him.

During closing arguments, the State reiterated to the

jury that the instruction required "reasonableness of the

defendant's belief that the use of deadly force was immediately

necessary shall be determined from the viewpoint of a reasonable

person . . . ." The State then argued "a reasonable person in

Mr. Koutsoubinas' position would not reasonably believe that

deadly force was necessary" and the force used in this case "was

deadly and it was also excessive and not justifiable under the

circumstances as they existed . . . . "

Because the circuit court instructed the jury that the

reasonableness of Koutsoubinas' "belief that the use of deadly

force was immediately necessary shall be determined from the

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viewpoint of a reasonable person," the State could disprove

Koutsoubinas' justification defense by showing a lack of

immediacy. See State v. Best, 150 Hawai‘i 401, 502 P.3d 1024,

No. CAAP-XX-XXXXXXX, 2022 WL 202570 at *4 (App. Jan. 24, 2022)

(SDO).

However, as the Hawai‘i Supreme Court noted, the plain

language of HRS § 703-304(2) does not require immediacy when

using deadly force. See DM, 152 Hawai‘i at 477 n.13, 526 P.3d at

454 n.13. In other words, the jury instruction provided the

State an additional way to disprove justification not afforded

in HRS § 703-304(2).

The jury convicted Koutsoubinas of Assault in the

Second Degree despite his testimony indicating he saw CW throw

Koutsoubinas' girlfriend to the ground and then run towards him.

One reasonable inference is that the jury did not find

Koutsoubinas' testimony credible as to the reason he believed

the use of deadly force was immediately necessary. We cannot

say that absent the erroneous instruction, the jury would have

still found Koutsoubinas was not justified in using deadly

force. Thus, there was a reasonable possibility the erroneous

instruction may have contributed to Koutsoubinas' conviction.

Based on the foregoing, we vacate the circuit court's

June 9, 2023 Judgment and July 18, 2023 Order Denying Motion for

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Mistrial, and remand this case to the circuit court for further

proceedings consistent with the summary disposition order.

DATED: Honolulu, Hawai‘i, August 23, 2024.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Gerald T. Johnson,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Lucas C. Burns,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Hawai‘i, Associate Judge
for Plaintiff-Appellee.

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