NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 11-JAN-2024 07:50 AM Dkt. 78 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee, v. CALVIN LEE HARRIS, JR., Defendant-Appellant APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPC-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.) Calvin Lee Harris, Jr. appeals from the Judgment of Conviction and Probation Sentence entered by the Circuit Court of the First Circuit on October 16, 2019.1 We vacate and remand for a new trial. Harris was charged by complaint with felony Abuse of Family or Household Members. A jury found him guilty of misdemeanor Abuse of Family or Household Members. He filed this appeal. He contends the circuit court plainly erred when instructing the jury on self-defense. Trial courts have a duty to properly instruct the jury. State v. Kato, 147 Hawai#i 478, 499, 465 P.3d 925, 946 (2020). If a jury instruction is flawed we will vacate, even without a timely objection, if there is a reasonable possibility that the NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

recklessly" physically abused the complaining witness (CW). See HRS §§ 702-204, -206 (1)-(3) (2014). The jury was instructed that if it did not find Harris guilty of felony Abuse of Household or Family Members it must consider the included offense of misdemeanor Abuse of Family or Household Members:

A person commits the offense of Abuse of Family or Household Members if he intentionally, knowingly, or recklessly physically abuses a family or household member.

There are three material elements of the offense of Abuse of Family or Household Members, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

believing that he was justified in using force against CW or was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use of force, the self-protection defense was not available to him for the offense of misdemeanor Abuse of Family or Household Members. But under the law, the self-protection defense was only unavailable to Harris for reckless misdemeanor physical abuse of CW. HRS § 703-310(1) (2014). In State v. Culkin, 97 Hawai#i 206, 35 P.3d 233 (2001), Culkin was charged with murder in the second degree in violation of HRS § 707-701.5 (1993). He contended he acted in self- defense. The jury was instructed on the included offenses of assault in the second degree and assault in the third degree, among others. Assault in the second degree could be committed intentionally, knowingly, or recklessly. HRS § 707-711(1)(a), (b) (1993). Assault in the third degree could also be committed intentionally, knowingly, or recklessly. HRS § 707-712(1)(a) (1993). The supreme court approved this instruction:

If and only if you find that the defendant was reckless in having a belief that he was justified in using self- protective force against another person, or that the defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use of force against the other person, then the use of such self-protective force is unavailable as a defense to the offenses of Manslaughter, Assault in the Second Degree based on reckless conduct, and Assault in the Third Degree based on reckless conduct.

Id. at 216 n.8, 35 P.3d at 243 n.8 (emphasis added). And in State v. Nupeiset, 90 Hawai#i 175, 977 P.2d 183, (App. 1999), Nupeiset was convicted of murder in the second degree, HRS § 707–701.5 (1993). It appears that the jury was also instructed on the included offenses of manslaughter and assault in the second degree. Manslaughter could be committed intentionally or recklessly. HRS § 707-702(1)(a), (b) (1993). Assault in the second degree could be committed intentionally, knowingly, or recklessly. HRS § 707-711(1)(a), (b) (1993). The supreme court approved this instruction: NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

If and only if you find that [Defendant] was reckless in having a belief that he was justified in using deadly force against [Fuller], or that [Defendant] was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use of deadly force against [Fuller], then the use of such deadly force is unavailable as a defense to the offenses of Manslaughter based on reckless conduct and/or Assault in the Second Degree based on recklessly causing serious bodily injury to another person.

Id. at 186, 977 P.2d at 194 (bolding added). The jury in this case should have been instructed that the self-protection defense was unavailable to Harris for reckless physical abuse — it would have been available to Harris for intentional or knowing physical abuse. The State argues that the error was harmless beyond a reasonable doubt because no reasonable person in Harris's position could have believed it was necessary to use force against CW. But that was a question for the jury. The record does not show whether the jury found Harris guilty of intentional, knowing, or reckless physical abuse of CW. On this record, we cannot say that the instructional error was harmless beyond a reasonable doubt. The Judgment is vacated and this case is remanded for a new trial.

DATED: Honolulu, Hawai#i, January 11, 2024.

On the briefs: /s/ Katherine G. Leonard Phyllis J. Hironaka, Presiding Judge Deputy Public Defender, State of Hawai#i, /s/ Keith K. Hiraoka for Defendant-Appellant. Associate Judge

Donn Fudo, /s/ Kimberly T. Guidry Deputy Prosecuting Attorney, Associate Judge City and County of Honolulu, for Plaintiff-Appellee.