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STATE v. KIKUTA
253 P.3d 639 (2011)
125 Haw. 78
STATE of Hawai`i, Petitioner/Plaintiff-Appellee
v.
Cedric K. KIKUTA, Respondent/Defendant-Appellant.
No. 29445.
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.
1. HRS § 703-309 provides in relevant part as follows:
Use of force by persons with special responsibility for care, discipline, or safety of others. The use of force upon or toward the person of another is justifiable under the following circumstances:
(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:
(a) The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and
(b) The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
(Emphases added.)
HRS § 707-700 (1993) defines "substantial bodily injury" as bodily injury which causes:
(1) A major avulsion, laceration, or penetration of the skin;
(2) A chemical, electrical, friction, or scalding burn of second degree severity;
(3) A bone fracture;
(4) A serious concussion; or
(5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.
(Emphasis added.)
2. HRS § 707-712 provides:
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; or
....
(2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.
(Emphasis added.)
3. The Honorable Rhonda A. Nishimura presided.
4. The majority memorandum opinion was issued by Associate Judges Daniel R. Foley and Alexa D.M. Fujise, with Chief Judge Nakamura dissenting.
5. HRS § 707-711 provides in relevant part:
Assault in the second degree. (1) A person commits the offense of assault in the second degree if:
(a) The person intentionally or knowingly causes substantial bodily injury to another;
(b) The person recklessly causes serious or substantial bodily injury to another[.]
6. On cross-examination, Complainant testified that he remembered providing a written statement to a police officer in which he first stated that he had told Respondent, "I bet you can't" get the stain out.
7. It is noted that although Respondent maintained in his opening brief that he weighed approximately 185 to 190 pounds at the time of the incident, he testified that "[w]hen he had his cast on [he] gained about [twenty-two] pounds." It is unclear as to whether the 185 to 190 pounds included the twenty-two pounds which Respondent had gained, or whether Respondent had gained twenty-two pounds while he had his cast on and then lost it prior to trial.
8. Petitioner did not raise contentions relating to the first or second element of the parental discipline defense.
9. As indicated before, it is unclear exactly how much Respondent weighed at the time of the incident, although he asserted in his opening brief that he weighed between 185 and 190 pounds at that time. See supra note 7.
10. Briefly noted, Petitioner argued that, in Miller, the ICA determined that strikes to the head creates a risk of causing substantial bodily injury. In Miller, the family court had concluded that "striking the victim about the head did create the risk of causing substantial bodily injury or neurological damage." 105 Hawai`i at 399, 98 P.3d at 270. The ICA explained, "While we may not agree with all of the purported principles of law promulgated by the family court in announcing its verdict, we need not ponder them all, for we conclude there was substantial evidence in any event to negate [the defendant's parental discipline] defense." Id. at 399-400, 98 P.3d 265, 270-71. Miller did not ipso facto establish in all cases that striking a complainant on the head creates a risk of causing substantial bodily injury so as to defeat the parental discipline defense. Rather, Miller concluded that there was substantial evidence adduced to support the family court's conclusion that the force used by the defendant in that case was "`known to create a risk of causing substantial bodily injury[.]'" Id. at 402, 98 P.3d at 273 (quoting HRS § 703-309(1)(b)).
Petitioner apparently suggests that the court's failure to instruct the jury on the parental discipline defense was harmless because no juror would have concluded that the force used by Respondent did not create a risk of causing substantial bodily injury. However, as recounted, there was conflicting testimony in the instant case and "[i]t is for the ... fact-finder to assess the credibility of witnesses and to resolve all questions of fact[.]" Id. at 400, 98 P.3d at 271 (internal quotation marks and citation omitted). Moreover, each case is to be judged on its "circumstances." See Matavale, 115 Hawai`i at 165, 166 P.3d at 338.
11. We disagree with the dissent's assertion that the error in this case is harmless beyond a reasonable doubt. See dissenting opinion at 101, 253 P.3d at 662. The dissent suggests that the force used in this case was "excessive" compared to the force used in Roman. Id. at 82, 253 P.3d at 643. With all due respect, the dissent assumes the role of the trier of fact in this case, deciding whether, under the controverted evidence, Petitioner should prevail on the merits of the parental discipline defense. As stated before, we determine only whether there was any evidence in the record supporting an instruction on the defense. Having determined that there is, it is the jury's duty to decide whether the force used by Petitioner was too "excessive" under the circumstances. As observed before, because we should not weigh the merits of the defense in this case, and further, cannot know how the jury would have ruled thereon had it been properly instructed, the error cannot be said to be harmless beyond a reasonable doubt.
The dissent challenges the foregoing, asserting that in some cases the force used against a minor is "so unreasonable as to take the issue of the parental discipline defense away from the jury." Dissenting opinion at 101 n. 3, 253 P.3d at 662 n. 3. The example posited by the dissent is where a parent shoots a minor. In such a case, the court would conclude as a matter of law, that the defendant would not be entitled to the parental discipline defense. Clearly, the force used in this case was not similar to the shooting of a minor. To reiterate, in contrast to the foregoing example, it cannot be concluded that the nature of the force used by Petitioner was excessive or unreasonable as a matter of law in light of the disputed evidence.
12. "The introduction to the HAWJIC indicates that `[n]othing herein contained shall be construed as an approval by the Supreme Court of the State of Hawai`i ... of the substance of any of said instructions." State v. Toro, 77 Haw. 340, 348, 884 P.2d 403, 411 (App.1994) (brackets in original). We nevertheless find HAWJIC's recommendation prudent in light of the foregoing discussion.
13. The dissent asserts that an instruction on mutual affray "was not supported by the evidence[.]" Dissenting opinion at 102, 253 P.3d at 663. According to the dissent, Complainant and Cousin testified that Petitioner was the aggressor and Complainant did not agree to enter into a fight with Respondent. Id. at 83, 253 P.3d at 644. First, the dissent disregards Respondent's testimony that Complainant picked up a crutch and swung it at him. Respectfully, in seemingly discrediting Respondent's testimony, the dissent determines credibility and weighs the evidence, something that is not within the province of an appellate court. State v. Eastman, 81 Haw. 131, 139, 913 P.2d 57, 65 (1996) ("An appellate court will not pass upon the trial judge's decisions with respect to the credibility of witnesses and the weight of the evidence, because this is the province of the trial judge.") Additionally, it would appear that the dissent would require an express statement by Complainant or Cousin that Complainant agreed to engage in a fight with Respondent. The dissent sets out several examples of when mutual consent to fight could be implied, see dissenting opinion at 102, 253 P.3d at 663, such as "gesturing to leave a bar, `throwing down the gauntlet' [or] clearing the bench at a baseball game," id. In the same light, it can be inferred from Complainant's conduct of swinging the crutch at Respondent, that he impliedly consented to a fight or scuffle with Respondent. But whether this was in fact the case was for the jury.
14. According to the dissent, State v. Stenger, 122 Haw. 271, 226 P.3d 441 (2010), which held that the court erred in failing to sua sponte instruct the jury on the mistake of fact defense when the defendant requested a claim of right instruction, id. at 276, 282, 226 P.3d at 446, 452, was "limited" by the concurring opinion which noted that the defense theory at issue in Stenger "formed the very heart of the defense case, rather than some nebulous, barely glimpsed theory on the margins[,]" id. at 297, 226 P.3d at 467 (Kim, J., concurring). Dissenting opinion at 102-03, 253 P.3d at 644-45; 103 n. 5, 253 P.3d at 664 n. 5. First, we note that Judge Kim also signed the opinion of the court.
Second, the dissent's view of Stenger would have to be justified under the doctrine set forth in Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), also known as the "narrowest grounds" doctrine, under which the holding of a plurality opinion "may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." However, that doctrine has been discredited. See, e.g., Adam S. Hochschild, The Modern Problem of Supreme Court Plurality Decisions: Interpretation in Historical Perspective, 4 Wash. U. J.L. & Pol'y 261, 281 (2000) (stating that even "[a]ccording to the [Court in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)], the narrowest grounds test proved easier to state than to apply"); Joseph M. Cacace, Plurality Decisions in the Supreme Court of the United States: A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U.L.Rev. 97, 101 (2007) (describing the two main "competing approaches" to applying the doctrine); Mark Alan Thurmon, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 429 (1992) (stating that neither of the two main justifications for the Marks doctrine provides a supportable basis for it and that the Marks court "misconstrued prior precedent and inadequately considered the problematic nature of plurality decisions"). More importantly, the doctrine has been applied very rarely and inconsistently by the Supreme Court. See, e.g., Nichols, 511 U.S. at 745, 114 S.Ct. 1921 ("We think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.").
1. Each case was a bench trial.
1. Additionally, I disagree with the majority's conclusion that the prosecution waived this argument, because "[a]n appellate court may affirm a judgment of the lower court on any ground in the record that supports affirmance." State v. Fukagawa, 100 Haw. 498, 506-07, 60 P.3d 899, 907-08 (2002) (internal quotation marks omitted) (quoting State v. Dow, 96 Haw. 320, 326, 30 P.3d 926, 932 (2001)); State v. Duncan, 101 Haw. 269, 275, 67 P.3d 768, 774 (2003) (upholding the trial court's decision to exclude testimony on other grounds and noting that "we have consistently held that where the decision is correct it must be affirmed by the appellate court even though the lower tribunal gave the wrong reason for its action") (quoting State v. Taniguchi, 72 Haw. 235, 240, 815 P.2d 24, 26 (1991)).
The majority asserts that the circuit court did not address this argument and the argument was waived. Majority opinion at 89, 253 P.3d at 650. However, the proposition that an appellate court can affirm a judgment on any ground in the record has not been predicated on raising an issue before the trial court. See Fukagawa, 100 Hawai`i at 506-07, 60 P.3d at 907-08; Kiehm v. Adams, 109 Haw. 296, 301 n. 13, 126 P.3d 339, 344 n. 13 (2005).
The majority also asserts that HRS § 703-309(1)(a) requires a determination of fact. Majority opinion at 89-90, 253 P.3d at 650-51. However, even assuming Kikuta's version of events is true, his use of force does not qualify as parental discipline under HRS § 703-309(1)(a). See infra at 80-81, 253 P.3d at 641-43.
2. The concurring opinion asserts that Crouser, Miller, and Tanielu "support the proposition that Defendant should not have been stripped of his right to have the jury consider his defense." Concurring opinion at 99, 253 P.3d at 660. The concurring opinion observes that the "parental discipline defense was asserted and considered by the trier of fact in all three cases, notwithstanding the force exercised by the defendants." Id. at 3, 922 P.2d 986. However, in those cases, the appellate courts only determined whether substantial evidence supported the trial court's rejection of the parental discipline defense. See Miller, 105 Hawai`i at 402, 98 P.3d at 273; Crouser, 81 Hawai`i at 12, 911 P.2d at 732; Tanielu, 82 Hawai`i at 381, 922 P.2d at 994. Because those cases did not address whether a parental discipline defense instruction was required, they do not implicitly stand for that proposition. See Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd., 19 Cal.4th 1182, 1195, 969 P.2d 613, 620, 81 Cal.Rptr.2d 521, 528 (1999) ("It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.").
3. At various points, the majority asserts that the dissent "assumes the role of the trier of fact in this case...." Majority opinion at 94 n. 11, 92, 253 P.3d at 655 n. 11, 653. This argument is not persuasive because this court has held 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." State v. Locquiao, 100 Haw. 195, 205, 58 P.3d 1242, 1252 (2002) (internal quotation marks omitted) (emphasis added) (quoting State v. Hironaka, 99 Haw. 198, 204, 53 P.3d 806, 812 (2002)). If the evidence adduced by the defendant does not support the consideration of the issue by the jury, the trial court is not required to instruct the jury as to that defense.
At some point, the force used is so unreasonable as to take the issue of the parental discipline defense away from the jury. For instance, if a parent shoots a minor and asserts the parental discipline defense, in my view, a trial court should not instruct the jury on the parental discipline defense because the evidence adduced does not create a jury question as to whether the use of that force was reasonably related to the discipline of a minor. See HRS § 703-309(1)(a). In this case, the two punches to the face of the Complainant resulting in a broken nose and chipped teeth exceeded that point, and therefore the circuit court properly refused Kikuta's request for a parental discipline defense instruction.
4. The majority asserts that this argument "disregards" Kikuta's testimony and weighs the evidence. Majority opinion at 97 n. 13, 253 P.3d at 628 n. 13. This argument is not persuasive because neither version of the events supports a mutual affray instruction. Thus, weighing the evidence is not necessary to conclude that the mutual affray defense was not supported by the evidence.
5. The majority asserts that the majority opinion in Stenger is binding on this court. Majority opinion at 97-98 n. 14, 253 P.3d at 658-59 n. 14. Even assuming arguendo that is correct, the majority's argument is unpersuasive because Stenger is distinguishable. As discussed above, we have no case law in this jurisdiction requiring trial courts to instruct the jury sua sponte as to all available defenses.
Furthermore, although the majority notes some criticism of the Marks doctrine, federal courts have continued applying it. See Jackson v. Danberg, 594 F.3d 210, 219-20 (3d Cir.2010) (identifying the United States Supreme Court's holding by employing the Marks framework); United States v. Robison, 505 F.3d 1208, 1221 (11th Cir.2007).
6. The majority asserts that it is not requiring trial courts to instruct the jury on all available defenses, but only those supported by the evidence. Majority opinion at 97-98, 253 P.3d at 664-65. However, the majority has set the threshold for a sua sponte defense instruction so low that its opinion effectively requires the trial court to instruct the jury sua sponte as to all available defenses. See Stenger, 122 Hawai`i at 306, 226 P.3d at 476 (Nakayama, J., dissenting). The facts of this case provide a good illustration of this argument. The majority holds that the trial court reversibly erred by failing to instruct the jury sua sponte on the defense of mutual affray because Kikuta testified that the Complainant attempted to strike him. However, many assault cases will involve two people fighting, and under the majority's analysis, trial courts will be required to instruct the jury sua sponte on the defense of mutual affray in those cases even though the defendant is not relying on that defense. The majority's decision effectively requires the trial court to ferret through the record unassisted by counsel and sua sponte instruct the jury as to all available and remotely tenable defenses. As discussed above, this is not a desirable result.
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