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STATE v. STENGER

No. 27511.

226 P.3d 441 (2010)

STATE of Hawai'i, Respondent/Plaintiff-Appellee v. Angela STENGER, Petitioner/Defendant-Appellant.

Supreme Court of Hawai`i.

March 4, 2010.

Attorney(s) appearing for the Case

Karen Nakasone, Deputy Public Defender (Taryn Tomasa, Deputy Public Defender, on the briefs and application) for petitioner/defendant-appellant.

Lawrence A. Goya, Deputy Attorney General for respondent/plaintiff-appellee.

ACOBA, and DUFFY, JJ., and Circuit Judge KIM assigned due to a vacancy; with substitute Justice KIM concurring separately; and MOON, C.J., Dissenting; and NAKAYAMA, J., dissenting, with whom MOON, C.J., Joins.

Opinion of the Court by ACOBA, J.

We hold that (1) Petitioner/Defendant-Appellant Angela Stenger (Petitioner) was entitled to a mistake of fact instruction under Hawai'i Revised Statutes (HRS) § 702-218 (1993)1; (2) based on that holding, it would be inappropriate for the circuit court of the first circuit (the court)2 to also give a claim of right instruction pursuant to HRS § 708-834(1) (Supp.2002...

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