NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 07-NOV-2025 08:05 AM Dkt. 65 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
STATE OF HAWAI I, Plaintiff-Appellee, v. DENO BELL, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Guidry, JJ.) Defendant Deno Bell (Bell) appeals from the July 11,
2023 Judgment of Conviction and Sentence (Judgment) entered
against him by the Circuit Court of the First Circuit, State of
Hawai i (Circuit Court).1 After a jury trial, Bell was convicted
of unlawful imprisonment in the second degree (UI2) in violation
of Hawaii Revised Statutes (HRS) § 707-722 (2014).2
1 The Honorable Fa auuga L. To oto o presided. 2 HRS § 707-722 provides, in relevant part:
§ 707-722 Unlawful imprisonment in the second degree. (1) A person commits the offense of unlawful imprisonment in the second degree if the person knowingly restrains another person.
HRS § 707-700 (2014) defines the term "restrain" in relevant part as follows:
"Restrain" means to restrict a person's movement in such a manner as to interfere substantially with the person's liberty: (1) By means of force, threat, or deception . . . NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Bell raises three points of error on appeal, contending
that: (1) the Circuit Court's jury instruction on the defense of
use of force to prevent suicide was insufficient; (2) the Circuit
Court also erred in its jury instruction on the "choice of evils"
defense; and (3) the State presented insufficient evidence to
convict him of unlawful imprisonment in the second degree,
because it failed to present sufficient evidence to negate his
use of force to prevent suicide and choice of evils defenses.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Bell's points of error as follows:
(1) Bell argues that jury instruction on the defense
of use of force to prevent suicide or the commission of a crime
under HRS § 703-308 (2014) was insufficient, because (a) the
Circuit Court failed to instruct the jury that the State bore the
burden of proving beyond a reasonable doubt that Bell's conduct
was not legally justified by the defense, and (b) the court
failed to instruct the jury that Bell "may estimate the necessity
for the use of such force under the circumstances as he
reasonably believes them to be when the force is used, without
doing any other act that he has no legal duty to do."
HRS § 703-308 is a defense, but not an affirmative
defense. See HRS §§ 703-301(1) (2014), 701-115(3) (2014). HRS
§ 703-308 provides, in relevant part:
§703-308. Use of force to prevent suicide or the commission of a crime. (1) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent the other person from committing suicide. . . [.]
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Over Bell's objection, the Circuit Court gave a jury
instruction on the defense of use of force to prevent suicide
that failed to include an instruction that the prosecution bore
the burden of negativing the defense. In Raines v. State, 79
Hawai i 219, 225, 900 P.2d 1286, 1292 (1995), the Hawai i Supreme
Court, overruling State v. McNulty, 60 Haw. 259, 266, 588 P.2d
438, 444 (1978), held that a trial court's failure to instruct
the jury on the prosecution's burden of proof regarding a defense
affected substantial rights of the defendant, and constituted
plain error. The supreme court stated: On second look, we hold that McNulty was incorrectly decided. We hold further that where, as here and in McNulty, the jury has been given instructions on a defense other than an affirmative defense, but has not been instructed that the prosecution bears the burden of proof beyond a reasonable doubt with respect to negativing that defense, substantial rights of the defendant may be affected and plain error may be noticed.
Id. (emphasis added).
We reject the State's argument that because the jury
was instructed they must "consider all the instructions as a
whole" and was given a general instruction that the prosecution
had "the duty of proving every material element of the offense
charged beyond a reasonable doubt," there was no error. In
reversing McNulty, the supreme court in Raines rejected the
principle that a general burden of proof instruction cures a
defective instruction on a justification defense. Id.; see also
State v. Eberly, 107 Hawai i 239, 250, 112 P.3d 725, 736 (2005)
(holding "when a defendant asserts a non-affirmative defense and
adduces evidence in support thereof, the circuit court must
instruct the jury as to the prosecution's burden of proof with
respect to negativing the defense") (citations omitted).
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
We also reject the State's argument that, in essence,
the erroneous jury instruction was harmless because the Circuit
Court properly instructed the jury on the choice of evils
justification defense, which was "intimately related and
inseparable." We note that the State cites no authority for this
proposition. More importantly, however, proper instruction on
one justification defense does nothing to lessen the potential
confusion and prejudice stemming from the Circuit Court's failure
to clearly instruct the jury that the State bore the burden of
proof beyond a reasonable doubt with respect to negativing the
use of force to prevent suicide justification defense.
Accordingly, we conclude that the Circuit Court erred
in the jury instruction on Bell's defense of use of force to
prevent suicide and the Judgment must be vacated on this ground.
Bell further argues that the Circuit Court reversibly
erred because the use of force to prevent suicide instruction was
deficient because it failed to instruct the jury that Bell "may
estimate the necessity for the use of such force under the
circumstances as he reasonably believes them to be when the force
is used, without doing any other act that he has no legal duty to
do." Bell bases this argument on the following language in the
use of force in self-defense justification in HRS § 703-304: § 703-304.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 07-NOV-2025 08:05 AM Dkt. 65 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
STATE OF HAWAI I, Plaintiff-Appellee, v. DENO BELL, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Guidry, JJ.) Defendant Deno Bell (Bell) appeals from the July 11,
2023 Judgment of Conviction and Sentence (Judgment) entered
against him by the Circuit Court of the First Circuit, State of
Hawai i (Circuit Court).1 After a jury trial, Bell was convicted
of unlawful imprisonment in the second degree (UI2) in violation
of Hawaii Revised Statutes (HRS) § 707-722 (2014).2
1 The Honorable Fa auuga L. To oto o presided. 2 HRS § 707-722 provides, in relevant part:
§ 707-722 Unlawful imprisonment in the second degree. (1) A person commits the offense of unlawful imprisonment in the second degree if the person knowingly restrains another person.
HRS § 707-700 (2014) defines the term "restrain" in relevant part as follows:
"Restrain" means to restrict a person's movement in such a manner as to interfere substantially with the person's liberty: (1) By means of force, threat, or deception . . . NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Bell raises three points of error on appeal, contending
that: (1) the Circuit Court's jury instruction on the defense of
use of force to prevent suicide was insufficient; (2) the Circuit
Court also erred in its jury instruction on the "choice of evils"
defense; and (3) the State presented insufficient evidence to
convict him of unlawful imprisonment in the second degree,
because it failed to present sufficient evidence to negate his
use of force to prevent suicide and choice of evils defenses.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Bell's points of error as follows:
(1) Bell argues that jury instruction on the defense
of use of force to prevent suicide or the commission of a crime
under HRS § 703-308 (2014) was insufficient, because (a) the
Circuit Court failed to instruct the jury that the State bore the
burden of proving beyond a reasonable doubt that Bell's conduct
was not legally justified by the defense, and (b) the court
failed to instruct the jury that Bell "may estimate the necessity
for the use of such force under the circumstances as he
reasonably believes them to be when the force is used, without
doing any other act that he has no legal duty to do."
HRS § 703-308 is a defense, but not an affirmative
defense. See HRS §§ 703-301(1) (2014), 701-115(3) (2014). HRS
§ 703-308 provides, in relevant part:
§703-308. Use of force to prevent suicide or the commission of a crime. (1) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent the other person from committing suicide. . . [.]
2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Over Bell's objection, the Circuit Court gave a jury
instruction on the defense of use of force to prevent suicide
that failed to include an instruction that the prosecution bore
the burden of negativing the defense. In Raines v. State, 79
Hawai i 219, 225, 900 P.2d 1286, 1292 (1995), the Hawai i Supreme
Court, overruling State v. McNulty, 60 Haw. 259, 266, 588 P.2d
438, 444 (1978), held that a trial court's failure to instruct
the jury on the prosecution's burden of proof regarding a defense
affected substantial rights of the defendant, and constituted
plain error. The supreme court stated: On second look, we hold that McNulty was incorrectly decided. We hold further that where, as here and in McNulty, the jury has been given instructions on a defense other than an affirmative defense, but has not been instructed that the prosecution bears the burden of proof beyond a reasonable doubt with respect to negativing that defense, substantial rights of the defendant may be affected and plain error may be noticed.
Id. (emphasis added).
We reject the State's argument that because the jury
was instructed they must "consider all the instructions as a
whole" and was given a general instruction that the prosecution
had "the duty of proving every material element of the offense
charged beyond a reasonable doubt," there was no error. In
reversing McNulty, the supreme court in Raines rejected the
principle that a general burden of proof instruction cures a
defective instruction on a justification defense. Id.; see also
State v. Eberly, 107 Hawai i 239, 250, 112 P.3d 725, 736 (2005)
(holding "when a defendant asserts a non-affirmative defense and
adduces evidence in support thereof, the circuit court must
instruct the jury as to the prosecution's burden of proof with
respect to negativing the defense") (citations omitted).
3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
We also reject the State's argument that, in essence,
the erroneous jury instruction was harmless because the Circuit
Court properly instructed the jury on the choice of evils
justification defense, which was "intimately related and
inseparable." We note that the State cites no authority for this
proposition. More importantly, however, proper instruction on
one justification defense does nothing to lessen the potential
confusion and prejudice stemming from the Circuit Court's failure
to clearly instruct the jury that the State bore the burden of
proof beyond a reasonable doubt with respect to negativing the
use of force to prevent suicide justification defense.
Accordingly, we conclude that the Circuit Court erred
in the jury instruction on Bell's defense of use of force to
prevent suicide and the Judgment must be vacated on this ground.
Bell further argues that the Circuit Court reversibly
erred because the use of force to prevent suicide instruction was
deficient because it failed to instruct the jury that Bell "may
estimate the necessity for the use of such force under the
circumstances as he reasonably believes them to be when the force
is used, without doing any other act that he has no legal duty to
do." Bell bases this argument on the following language in the
use of force in self-defense justification in HRS § 703-304: § 703-304. Use of force in self-protection. (1) Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.
. . . .
(3) Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without
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retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(Emphasis added).
Although HRS § 703-304 states it is "subject to section
703-308" (use of force to prevent suicide), it expressly applies
to the use of force upon another "when the actor believes such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by the other person."
(Emphasis added). At trial, Bell did not present any evidence
that he believed he needed to protect himself from the use of
unlawful force by the complaining witness (CW). Accordingly,
Bell's argument lacks merit.
(2) Bell argues that the Circuit Court gave a
deficient "choice of evils" instruction because the court failed
to instruct the jury that the justification applied to the lesser
included offense of unlawful imprisonment in the second degree,
as well as the charge of kidnapping. However, the choice of
evils defense did not apply to Bell's conduct, because of the
applicability of the more specific defense of use of force to
prevent suicide, which was applicable here. See State v. Smith,
91 Hawai i 450, 463, 984 P.2d 1276, 1289 (Haw. App. 1999)
(holding that choice of evils defense did not apply pursuant to
HRS § 703-302(1)(b) where more specific self-defense
justification under HRS § 703-304 applied). Therefore, we
conclude that Bell's second point of error is without merit.
(3) Bell argues that the record lacks substantial
evidence to negate his choice of evils and use of force to
prevent suicide defenses. As noted above, the choice of evils
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defense was inapplicable; the relevant inquiry is whether there
was substantial evidence to support his conviction for UI2,
including negativing the use of force to prevent suicide defense.
On appeal, Bell fails to provide any analysis of how the evidence
was insufficient to support his conviction.
CW testified that on the night of March 11, 2022,
"every time I tried to get close at all to the door, he'd stop me
from leaving to the door, so [sic] prevent me from going out, or
if I unlocked my door, he'd lock it back." She claims she tried
multiple times to leave her apartment, but Bell prevented her
from leaving. She testified that the first time she was able to
get past the front door, Bell "dragged me back in." Bell
admitted that on March 11, 2024, he forcibly dragged CW back into
her apartment, despite her telling him "no, let me go, let me
go." There were significant differences in the witnesses'
testimony, but it was undisputed that Bell forcibly dragged CW
back into her apartment after she tried to leave. Although Bell
argued his intent was to prevent the CW from harming herself,
"[i]n a jury trial, the jury is the trier of fact and, thus, is
the sole judge of the credibility of the witnesses and the weight
of the evidence." State v. Jhun, 83 Hawai i 472, 483, 927 P.2d 1355, 1366 (1996); State v. Kikuta, 125 Hawai i 78, 93, 253 P.3d
639, 654 (2011) (stating that determining the credibility of
witnesses and weighing disputed evidence "are within the sole
province of the jury as the trier of fact"). Here, the evidence
was open to interpretation, including an interpretation that the
evidence was sufficient to negate the justification and support
the conviction.
6 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
For these reasons, the Circuit Court's July 11, 2023
Judgment is vacated and this case is remanded to the Circuit
Court for a new trial on the charge of UI2.
DATED: Honolulu, Hawai i, November 7, 2025.
/s/ Karen T. Nakasone Chief Judge
/s/ Katherine G. Leonard Associate Judge
/s/ Kimberly T. Guidry Associate Judge