STATE v. KIKUTA
253 P.3d 639 (2011)
125 Haw. 78
STATE of Hawai`i, Petitioner/Plaintiff-Appellee
Cedric K. KIKUTA, Respondent/Defendant-Appellant.
Supreme Court of Hawai`i.
June 8, 2011.
Anne K. Clarkin, Deputy Prosecuting Attorney, for petitioner/plaintiff-appellee State of Hawai`i.
ACOBA and DUFFY, JJ., and Circuit Judge WILSON, assigned by reason of vacancy; with Circuit Judge WILSON concurring separately; and NAKAYAMA, J., dissenting, with whom RECKTENWALD, C.J., joins.
Opinion of the Court by ACOBA, J.
We hold that (1) an instruction on Hawai`i Revised Statutes (HRS) § 703-309 (1993) (parental discipline defense),1 is not per se precluded by the fact that substantial bodily injury occurred; (2) as with other defenses, an instruction to the jury on the parental discipline defense must be given so long as there is some evidence in the record to support
each element of the defense, no matter how weak, inconclusive, or unsatisfactory that evidence may be; and (3) an instruction on HRS § 707-712(2) (1993) (mutual affray) must be given along with an instruction on Assault in the Third Degree, HRS § 707-712(1),2 if there is any evidence that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent. Inasmuch as there was some evidence in the record to support an instruction on the parental discipline defense, such an instruction requested by Respondent/Defendant-Appellant Cedric K. Kikuta (Respondent) was required to be given to the jury by the Family Court of the First Circuit (the court).3 Additionally, under the circumstances, it was necessary to provide the jury with a mutual affray instruction, along with the Assault in the Third Degree instruction, where there was some evidence that the injury was inflicted during a fight entered into by mutual consent.
Accordingly, the June 8, 2010 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its May 18, 2010 memorandum opinion,4 vacating the court's October 1, 2008 Judgment of Conviction and Sentence for its failure to instruct the jury on the parental discipline defense is affirmed in part, but is vacated in part as to the lack of disposition regarding a mutual affray instruction. The case is remanded for retrial. We emphasize that our holding in no way condones the use of illegal force against minors. As acknowledged by the legislature, "`the line between physical abuse and appropriate parental discipline is a very subjective one. What one parent considers discipline may seem abusive to another.'" State v. Matavale, 115 Haw. 149, 161, 166 P.3d 322, 334 (2007) (quoting Sen. Stand. Comm. Rep. No. 2493, in 1992 Senate Journal, at 1121). However, because a defendant is "entitled to have the trier of fact consider a defense having any support in the evidence no matter how weak, inconclusive, or unsatisfactory the evidence involved[,]" State v. Riveira, 59 Haw. 148, 153, 577 P.2d 793, 797 (1978), we consider only whether there was any evidence in the record supporting an instruction on the parental discipline and mutual affray defenses. We need not consider, today, the merits of whether Petitioner's use of force crossed the "`line between physical abuse and appropriate parental discipline,'" Matavale, 115 Hawai`i at 149, 166 P.3d at 334, but hold only that Petitioner was entitled to have the jury, not the court, consider those defenses under the circumstances of this case.I.
The following essential matters, some verbatim, are from the record and the submissions of the parties.
On October 9, 2007, Respondent was charged by written complaint with Assault in the Second Degree, HRS § 707-711(1) (Supp.2007).5 On June 16, 2008, Respondent was convicted by a jury for Assault in the Third Degree.