plain error in Hawaii

2020An appellate court’s “power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system — that a party must look to [their] counsel for protection and bear the cost of counsel’s mistakes.” Nichols, 111 Hawai‘i at 335, 141 P.3d at 982 (quoting State v. Kelekolio, 74 Haw. 479, 515 , 849 P.2d 58 , 74–75 (1993)).

2020An appellate court’s “power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system — that a party must look to [their] counsel for protection and bear the cost of counsel’s mistakes.” Nichols, 111 Hawai‘i at 335, 141 P.3d at 982 (quoting State v. Kelekolio, 74 Haw. 479, 515 , 849 P.2d 58 , 74–75 (1993)).

2021See State v. Miller, 122 Hawai#i 92, 100, 223 P.3d 157, 165 (2010) (quoting State v. Sanchez, 82 Hawai#i 517, 524-25, 923 P.2d 934, 941-42 (App. 1996)); see also State v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998) (the appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." (citing State v. Fox, 70 Haw. 45, 56 , 760 P.2d 670 , 676 3/ Matavale states the applicable standard of review "whe

2020The appellate court “will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Nichols, 111 Hawai‘i 327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998)).

2023This court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006) (citations omitted).

2023This court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006) (citations omitted).

2019The appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Vanstory, 91 Hawai'i 33, 42, 979 P.2d 1059, 1068 (1999) (internal quotation marks and citation omitted).

2019The appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Vanstory, 91 Hawai'i 33, 42, 979 P.2d 1059, 1068 (1999) (internal quotation marks and citation omitted).

2021See State v. Miller, 122 Hawai#i 92, 100, 223 P.3d 157, 165 (2010) (quoting State v. Sanchez, 82 Hawai#i 517, 524-25, 923 P.2d 934, 941-42 (App. 1996)); see also State v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998) (the appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." (citing State v. Fox, 70 Haw. 45, 56 , 760 P.2d 670 , 676 3/ Matavale states the applicable standard of review "whe

2018See Miller , 122 Hawai'i at 117 , 223 P.3d at 182 ("[T]he term 'sparingly' refers to the limitation already in place in HRPP Rule 52(b) that the error must be one 'affecting substantial rights.' ... [W]here plain error has been committed and substantial rights have been affected thereby, the better part of discretion is to invoke the plain error rule." (some internal quotations and alterations omitted) (quoting State v. Fox , 70 Haw. 46 , 56, 760 P.2d 670 , 676 (1988) ) ); Ui , 142 Hawai'i at 298 n.19, 418 P.3d at 639 n.19 ("We reaffirm Miller 's holding that where plain error has been committ

2023See State v. Miller, 122 Hawai #i 92, 101, 223 P.3d 157, 166 (2010) (quoting State v. Adams, 76 Hawai #i 408, 414, 879 P.2d 513, 519 (1994) and Santobello v. New York, 404 U.S. 257, 262 (1971)) ("breaches of plea agreements provide appropriate bases for appellate review under the plain error standard" (quoting Adams, 76 Hawai #i at 414, 879 P.2d at 519 )); see also Hawai#i Rules of Penal Procedure (HRPP) Rule 52(b) ("Plain (continued...) 5 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER the State has breached the terms of a plea agreement is reviewed de novo under the righ

2021State v. Miller, 122 Hawai#i 92, 101, 223 P.3d 157, 166 (2010). "[B]reaches of plea agreements provide appropriate bases for appellate review under the plain error standard, inasmuch as a breach implicates due process and the interests of justice." Id. (internal quotation marks and citations omitted). 2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Here, it is undisputed that the terms of the Plea Agreement were initially reduced to writing in paragraph 8 of the No Contest Plea form, which provides as follows: 8.

2023The Corderos did not oppose the non-hearing motion.4 The Motion for Leave to Amend Foreclosure Decree sought to amend the July 17, 2019 foreclosure decree by including a missing exhibit, Exhibit "A", that was referred to in the foreclosure decree but not attached.5 "In civil cases, the plain error rule is only invoked when 'justice so requires.'" U.S. Bank Nat'l Ass'n v. Castro, 131 Hawai‘i 28, 42, 313 P.3d 717, 731 (2013) (quoting Montalvo v. Lapez, 77 Hawai‘i 282, 290, 884 P.2d 345, 353 (1994)).

2019Moreover, as expressed by the Hawai'i Supreme Court, "the plain error doctrine is based on notions of equity and justice." Montalvo , 77 Hawai'i at 291 , 884 P.2d at 354 (citation omitted).

2013Although this court “may recognize plain error when the error committed affects substantial rights of the defendant,” Staley, 91 Hawaii at 282 , 982 P.2d at 911 (citation omitted); see HRPP Rule 52(b), the alleged inaccuracy in the PSI report does not rise to the level of plain error because the record indicates that the circuit court based its imposition of a consecutive sentence on Kong’s “extensive” criminal record as a whole and not solely on the specific convictions that Kong alleges are invalid (Cr.

2013Although this court “may recognize plain error when the error committed affects substantial rights of the defendant,” Staley, 91 Hawaii at 282 , 982 P.2d at 911 (citation omitted); see HRPP Rule 52(b), the alleged inaccuracy in the PSI report does not rise to the level of plain error because the record indicates that the circuit court based its imposition of a consecutive sentence on Kong’s “extensive” criminal record as a whole and not solely on the specific convictions that Kong alleges are invalid (Cr.

2018The Hawai'i Supreme Court in Okada Trucking Co., Ltd., v. Bd. of Water Supply , 97 Hawai'i 450 , 40 P.3d 73 (2002), stated: The plain error doctrine represents a departure from the normal rules of waiver that govern appellate review, and, as such, ... an appellate court should invoke the plain error doctrine in civil cases only when justice so requires.

2018The Hawai'i Supreme Court in Okada Trucking Co., Ltd., v. Bd. of Water Supply , 97 Hawai'i 450 , 40 P.3d 73 (2002), stated: The plain error doctrine represents a departure from the normal rules of waiver that govern appellate review, and, as such, ... an appellate court should invoke the plain error doctrine in civil cases only when justice so requires.

1999State v. Davia, 87 Hawai'i 249, 253 , 953 P.2d 1347, 1351 (1998). “[T]his [c]ourt will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Sawyer 88 Hawai'i 325, 330 , 966 P.2d 637, 642 (1998)(citing State v. Fox, 70 Haw. 46, 56 , 760 P.2d 670, 676 (1988)).

1999State v. Davia, 87 Hawai'i 249, 253 , 953 P.2d 1347, 1351 (1998). “[T]his [c]ourt will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Sawyer 88 Hawai'i 325, 330 , 966 P.2d 637, 642 (1998)(citing State v. Fox, 70 Haw. 46, 56 , 760 P.2d 670, 676 (1988)).

2021An appellate court "will apply the plain error standard of review to correct errors [that] seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Kikuta, 125 Hawai#i 78, 95, 253 P.3d 639, 656 (2011) (citation and internal quotation marks omitted).

2018In State v. Kikuta , 125 Hawai'i 78 , 95-96, 253 P.3d 639 , 656-57 (2011), the Hawai'i Supreme Court held that the trial court committed plain error in failing to instruct the jury on the mitigating defense of mutual affray, which reduced the offense of Assault in the Third Degree under HRS § 707-712 from a misdemeanor to a petty misdemeanor.

2015Nevertheless, [the appellate] court's "'power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system-- that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes.'" State v. Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001) (quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)).

2015Nevertheless, [the appellate] court's "'power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system-- that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes.'" State v. Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001) (quoting State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)).

2023An appellate court's "power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system--that a party must look to his or her counsel for protection and bear the cost of 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER counsel's mistakes." Metcalfe, 129 Hawaiʻi at 222, 297 P.3d at 1078 (citation omitted).

2023An appellate court's "power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system--that a party must look to his or her counsel for protection and bear the cost of 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER counsel's mistakes." Metcalfe, 129 Hawaiʻi at 222, 297 P.3d at 1078 (citation omitted).

2018Standard of Review A. Plain error Plain error may be recognized "when the error committed affects substantial rights of the defendant." State v. Cullen, 86 Hawaii 1, 8, 946 P.2d 955, 962 (1997) (citation omitted).

2018Standard of Review A. Plain error Plain error may be recognized "when the error committed affects substantial rights of the defendant." State v. Cullen, 86 Hawaii 1, 8, 946 P.2d 955, 962 (1997) (citation omitted).

2002Id. at 205 , 998 P.2d at 485 (citations omitted); see State v. Jenkins, 93 Hawai'i 87, 101 , 997 P.2d 13 -27 (2000) (“We may recognize plain error when the error committed affects substantial rights of the defendant.”) (Quoting State v. Cullen, 86 Hawai'i 1, 8 , 946 P.2d 955, 962 (1997)); Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) (1993) (“Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention' of the court.”); see also State v. Haanio, 94 Hawai'i 405, 414-16 , 16 P.3d 246, 255-57 (2001) (distinguishing plain from harmless err

2002Id. at 205 , 998 P.2d at 485 (citations omitted); see State v. Jenkins, 93 Hawai'i 87, 101 , 997 P.2d 13 -27 (2000) (“We may recognize plain error when the error committed affects substantial rights of the defendant.”) (Quoting State v. Cullen, 86 Hawai'i 1, 8 , 946 P.2d 955, 962 (1997)); Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) (1993) (“Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention' of the court.”); see also State v. Haanio, 94 Hawai'i 405, 414-16 , 16 P.3d 246, 255-57 (2001) (distinguishing plain from harmless err

2025"Because prosecutorial misconduct impacts the fundamental right to a fair trial, there is no difference between the plain error and harmless beyond a reasonable doubt standards of review." State v. Hirata, 152 Hawai‛i 27, 31, 520 P.3d 225 , 229 (2022) (citation omitted).

2025“Because prosecutorial misconduct impacts the fundamental right to a fair 3 Willis further requests this court to address “additional issues of prosecutorial misconduct, sufficiency of the evidence, and suppression of the eyewitness identification.” These issues were not raised in any application for writ of certiorari, are in any event without merit and, therefore, are not discussed herein. 19 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** trial, there is no difference between the plain error and harmless beyond a reasonable doubt standards of review.” State v. Hirata,

2002See State v. Arceo, 84 Hawai'i 1, 34 , 928 P.2d 843, 876 (1996) (citing United States v. Ancheta, 38 F.3d 1114, 1116 (9th Cir.1994)) (Nakayama, J., dissenting) (“Plain error is a highly prejudicial error affecting substantial rights, and is found only in exceptional circumstances.”); State v. Fox, 70 Haw. 46, 56 , 760 P.2d 670, 675-76 (1988) (citing United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391 , 80 L.Ed. 555 (1936)) (“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception

2002See State v. Arceo, 84 Hawai'i 1, 34 , 928 P.2d 843, 876 (1996) (citing United States v. Ancheta, 38 F.3d 1114, 1116 (9th Cir.1994)) (Nakayama, J., dissenting) (“Plain error is a highly prejudicial error affecting substantial rights, and is found only in exceptional circumstances.”); State v. Fox, 70 Haw. 46, 56 , 760 P.2d 670, 675-76 (1988) (citing United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391 , 80 L.Ed. 555 (1936)) (“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception

2005United States v. Olano, 507 U.S. 725, 731-737 , 113 S.Ct. 1770, 1776-1779 , 123 L.Ed.2d 508 (1993). 5 In a 1999 case involving jury instructions, the Hawai‘i Supreme Court stated, in relevant part: “As a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error.” State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998); see also State v. Kupau, 76 Hawai'i 387, 392 , 879 P.2d 492, 497 (1994); State v. Pinero, 75 Haw. 282, 291-2 , 859 P.2d 1369, 1374 (1993). “[T]his court will apply the plain error standard of review to correct error

2003Moreover, the Haanio court expressly disapproved of the plain error holding in Kupau, Haanio, 94 Hawai'i at 416 , 16 P.3d at 257 (“To the extent that Kupau held that the failure to give an included offense instruction was plain error even when the defendant was convicted of the charged offense, see [Kupau] 76 Hawai'i at 396 , 879 P.2d at 501 , it conflicts with the rationale of Holbron , which we reaffirm here and, in that aspect, [Kupau] can no longer be regarded as controlling.”), even though the Kupau trial court did not instruct the jury on any included offense.

2021See State v. Miller, 122 Hawai#i 92, 100, 223 P.3d 157, 165 (2010) (quoting State v. Sanchez, 82 Hawai#i 517, 524-25, 923 P.2d 934, 941-42 (App. 1996)); see also State v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998) (the appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." (citing State v. Fox, 70 Haw. 45, 56 , 760 P.2d 670 , 676 3/ Matavale states the applicable standard of review "whe

2010It would seem firmly established that under the plain error doctrine, “where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not. brought to the attention of the trial court.” Sanchez, 82 Hawai'i at 524-25 , 923 P.2d at 941 -42 (quoting State v. Kelekolio, 74 Haw. 479, 515 , 849 P.2d 58, 75 (1993)) (brackets omitted).

2016State v. Maumalanga, 90 Hawai‘i 58, 63, 976 P.2d 372, 377, xeconsideration denied (1999) (quoting [State v. Davia, 87 Hawai'i 249, 253, 953 P.2d 1347, 1351 (1998)]).

2003State v. Jenkins, 93 Hawai'i 87, 101 , 997 P.2d 13, 27 (2000) (quoting State v. Staley, 91 Hawai'i 275, 282 , 982 P.2d 904, 911 (1999) (quoting State v. Maumalanga, 90 Hawai'i 58, 63 , 976 P.2d 372, 377 (1998) (quoting State v. Davia, 87 Hawai'i 249, 253 , 953 P.2d 1347, 1351 (1998)))).

1988We have said little more in this regard than HRPP 52(b) itself, that is: appellate courts “have the power, sua sponte, to notice plain errors or defects in the record affecting substantial rights [though they were] not properly brought to the attention of the trial judge or raised on appeal.” State v. Iaukea, 56 Haw. 343, 355 , 537 P.2d 724, 733 (1975) (citations omitted); see also State v. Brezee, 66 Haw. 162, 166 , 657 P.2d 1044, 1047 (1983); State v. Onishi, 59 Haw. 384, 385 , 581 P.2d 763, 765 (1978); cf. State v. Kahalewai, 56 Haw. 481, 491 , 541 P.2d 1020, 1027 (1975) (Plain error may be

1988We have said little more in this regard than HRPP 52(b) itself, that is: appellate courts “have the power, sua sponte, to notice plain errors or defects in the record affecting substantial rights [though they were] not properly brought to the attention of the trial judge or raised on appeal.” State v. Iaukea, 56 Haw. 343, 355 , 537 P.2d 724, 733 (1975) (citations omitted); see also State v. Brezee, 66 Haw. 162, 166 , 657 P.2d 1044, 1047 (1983); State v. Onishi, 59 Haw. 384, 385 , 581 P.2d 763, 765 (1978); cf. State v. Kahalewai, 56 Haw. 481, 491 , 541 P.2d 1020, 1027 (1975) (Plain error may be

2014The "power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system--that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes." State v. Fields, 115 Hawai‘i 503, 529, 168 P.3d 955, 981 (2007) (citations omitted).

2013Indeed, this court has repeatedly stated that our "power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system-that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes." State v. Fields, 115 Hawai'i 503, 529 , 168 P.3d 955, 981 (2007) (citation omitted).

2012Nevertheless, we have also stated numerous times and must also bear in mind “that the power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes.” State v. Fields, 115 Hawai'i 503, 529 , 168 P.3d 955, 981 (2007) (quoting State v. Rodrigues, 113 Hawai'i 41, 47 , 147 P.3d 825, 831 (2006)) (internal quotation mai’ks and other citations omitted).

2012Nevertheless, we have also stated numerous times and must also bear in mind “that the power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes.” State v. Fields, 115 Hawai'i 503, 529 , 168 P.3d 955, 981 (2007) (quoting State v. Rodrigues, 113 Hawai'i 41, 47 , 147 P.3d 825, 831 (2006)) (internal quotation mai’ks and other citations omitted).

2020In Lavoie, 145 Hawaiʻi 409, 453 P.3d 229 , consistent with our prior holding in State v. Matias, 102 Hawaiʻi 300, 75 P.3d 1191 (2003), we stated: Generally, when the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element.

2005State v. Hauge, 103 Hawai'i 38, 48 , 79 P.3d 131, 141 (2003) (quoting State v. Matias, 102 Hawai'i 300, 304 , 75 P.3d 1191, 1195 (2003)).

2018However, the State, citing State v. Taylor, 130 Hawai'i 196, 205, 307 P.3d 1142, 1151 (2013), State v. Silva, 78 Hawai‘i 115, 890 P.2d 702 (App. 1995), and LaVinge v. State, 812 P.2d 217 (Alaska 1991), claims a two-step plain error analysis requires the defendant to demonstrate a reasonable possibility that the error contributed to his conviction and come forward with an affidavit identifying what relevant testimony would have been presented at trial. "[I]n order to protect the right to testify under the Hawai'i Constitution, trial courts must advise criminal defendants of their right to testi

2018However, the State, citing State v. Taylor, 130 Hawai'i 196, 205, 307 P.3d 1142, 1151 (2013), State v. Silva, 78 Hawai‘i 115, 890 P.2d 702 (App. 1995), and LaVinge v. State, 812 P.2d 217 (Alaska 1991), claims a two-step plain error analysis requires the defendant to demonstrate a reasonable possibility that the error contributed to his conviction and come forward with an affidavit identifying what relevant testimony would have been presented at trial. "[I]n order to protect the right to testify under the Hawai'i Constitution, trial courts must advise criminal defendants of their right to testi

2017See State v. Uyesugi, 100 Hawai‘i 442, 449, 60 P.3d 843, 850 (2002) (noting 6 *** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** that a substantial right under plain error review includes constitutional rights, such as the right to trial). “[T]his [c]ourt will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998).

2002The majority states that "[Defendant] completely ignores that part of the Miyashiro reasoning that expressly states that it was not the instructions, standing alone, that were prejudicially insufficient or misleading, but was the circuit court's answer to the jury communication in conjunction with the instructions that resulted in the plain error." Majority opinion at 459, 60 P.3d at 860 .

2015The defendant in Aganon was charged with the offense of murder in 16 See State v. Miller, 122 Hawai#i 92, 101, 223 P.3d 157, 166 (2010) (recognizing appellate review under the plain error standard is appropriate where trial court error “implicates” “due process” (quoting State v. Adams, 76 Hawai#i 408, 414, 879 P.2d 513, 519 (1994)). 35 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** the second degree under HRS § 702-205 (1993), which required proof that the defendant acted intentionally or knowingly with respect to each of the three elements of the offense. 97 Hawai

2012It is well-established that a court’s error can be noticed for plain error, see State v. Stenger, 122 Hawai'i 271, 282 , 226 P.3d 441, 452 (2010) (noting that “the court’s failure to instruct” was reviewed under the plain error standard of review, which, in the case of erroneous jury instructions, is merged with the harmless beyond a reasonable doubt standard); State v. Vellina, 106 Hawai'i 441, 450 , 106 P.3d 364, 373 (2005) (noting that plain error arose when circuit court’s sentence to consecutive terms was based on the exclusive reliance of unproven assertions by the prosecutor that the de