NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-AUG-2024 08:19 AM Dkt. 126 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee, v. CHARLES KOUTSOUBINAS, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)
Defendant-Appellant Charles Koutsoubinas appeals from
the Circuit Court of the Second Circuit's June 9, 2023 Judgment 1
convicting him of Assault in the First Degree, in violation of
Hawai‘i Revised Statutes (HRS) § 707-710 (2014). Koutsoubinas
also appeals from the circuit court's July 18, 2023 "Order
Denying Defendant's Motion for Mistrial" (Order Denying Motion
for Mistrial). 2
1 The Honorable Christopher M. Dunn presided.
2 The Honorable Michelle L. Drewyer presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On appeal, Koutsoubinas raises nine points of error, 3
however, his challenge to the jury instruction is dispositive.
The challenged instruction provided an additional means for the
State to disprove justification not provided in the statute.
Thus, the jury instruction was wrong, and there was a reasonable
possibility this error may have contributed to Koutsoubinas'
conviction.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and vacate and remand for further
proceedings.
Relying on In re DM, 152 Hawai‘i 469, 526 P.3d 446
(2023), Koutsoubinas contends the instruction on deadly force
wrongly included the word "immediately." 4 In a conclusory
fashion, Koutsoubinas claims he was prejudiced.
3 Koutsoubinas raises the following nine points of error: (1) the judgment wrongly reflects Assault in the First Degree; (2) the State secretly destroyed exculpatory evidence; (3) the State secretly placed a prosecutor's spouse on the jury; (4) the instruction on self-defense was misleading and prejudicial; (5) his right to confrontation was violated; (6) a defense witness was improperly attacked for asserting her right to remain silent; (7) the circuit court clearly erred in denying his proposed findings of fact; (8) the circuit court erred in denying his proposed conclusions of law; and (9) the State committed prosecutorial misconduct during closing arguments.
Koutsoubinas correctly asserts that the judgment wrongly reflects Assault in the First Degree when he was found guilty of Assault in the Second Degree. This is a clerical error that should be rectified. But, based on our decision today, we need not address the remaining points of error.
4 Koutsoubinas raises no point of error as to the instruction on defense of others.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
The trial court is ultimately responsible for properly
instructing the jury. State v. Nichols, 111 Hawai‘i 327, 335,
141 P.3d 974, 982 (2006). "When jury instructions or the
omission thereof are at issue on appeal, the standard of review
is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading." State v. Metcalfe, 129 Hawai‘i
206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted).
"Erroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial." Id.
(citation omitted).
"[T]he real question becomes whether there is a
reasonable possibility that error might have contributed to
[the] conviction." Nichols, 111 Hawai‘i at 334, 141 P.3d at 981
(citation omitted). "[O]nce instructional error is
demonstrated, we will vacate, without regard to whether timely
objection was made, if there is a reasonable possibility that
the error contributed to the defendant's conviction." Id. at
337, 141 P.3d at 984.
For self-defense, "[t]he use of deadly force is
justifiable . . . if the actor believes that deadly force is
necessary to protect himself against death, serious bodily
injury, kidnapping, rape, or forcible sodomy." HRS § 703-304(2)
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2014). Recently, the Hawai‘i Supreme Court noted that the
Hawai‘i Standard Jury Instructions (HAWJIC) 7.01A misstates HRS
§ 703-304(2) by inserting "immediately" before "necessary." DM,
152 Hawai‘i at 477 n.13, 526 P.3d at 454 n.13.
In this case, the jury instruction for self-defense
tracked HAWJIC and included "immediately" before "necessary":
The use of deadly force upon or toward another person is justified if the defendant reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death, serious bodily injury, kidnapping, rape, and/or forcible sodomy. The reasonableness of the defendant's belief that the use of protective deadly force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant's position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the deadly force was used.
(Emphases added.)
Because the jury instruction in this case required
that the use of deadly force be "immediately necessary" as
opposed to "necessary," the instruction did not accurately
reflect the law. Thus, the instruction was wrong and
presumptively harmful.
We must now determine whether there was a reasonable
possibility this error may have contributed to Koutsoubinas'
For Assault in the Second Degree, the State had to
prove beyond a reasonable doubt that Koutsoubinas intentionally,
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
knowingly, or recklessly caused substantial bodily injury, or
that he recklessly caused bodily injury, to the complaining
witness (CW). HRS § 707-711(1)(a) and (1)(b) (Supp. 2018). And
the State would also have to disprove justification. HRS § 702-
205 cmt. (2014); HRS § 703-304(2).
Based on the evidence in the record, Koutsoubinas'
conviction of Assault in the Second Degree appears to depend on
whether his use of deadly force was justified. Koutsoubinas
testified he saw CW grab his girlfriend between the legs, slam
her to the ground, and run straight towards him.
During closing arguments, the State reiterated to the
jury that the instruction required "reasonableness of the
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-AUG-2024 08:19 AM Dkt. 126 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee, v. CHARLES KOUTSOUBINAS, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)
Defendant-Appellant Charles Koutsoubinas appeals from
the Circuit Court of the Second Circuit's June 9, 2023 Judgment 1
convicting him of Assault in the First Degree, in violation of
Hawai‘i Revised Statutes (HRS) § 707-710 (2014). Koutsoubinas
also appeals from the circuit court's July 18, 2023 "Order
Denying Defendant's Motion for Mistrial" (Order Denying Motion
for Mistrial). 2
1 The Honorable Christopher M. Dunn presided.
2 The Honorable Michelle L. Drewyer presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On appeal, Koutsoubinas raises nine points of error, 3
however, his challenge to the jury instruction is dispositive.
The challenged instruction provided an additional means for the
State to disprove justification not provided in the statute.
Thus, the jury instruction was wrong, and there was a reasonable
possibility this error may have contributed to Koutsoubinas'
conviction.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and vacate and remand for further
proceedings.
Relying on In re DM, 152 Hawai‘i 469, 526 P.3d 446
(2023), Koutsoubinas contends the instruction on deadly force
wrongly included the word "immediately." 4 In a conclusory
fashion, Koutsoubinas claims he was prejudiced.
3 Koutsoubinas raises the following nine points of error: (1) the judgment wrongly reflects Assault in the First Degree; (2) the State secretly destroyed exculpatory evidence; (3) the State secretly placed a prosecutor's spouse on the jury; (4) the instruction on self-defense was misleading and prejudicial; (5) his right to confrontation was violated; (6) a defense witness was improperly attacked for asserting her right to remain silent; (7) the circuit court clearly erred in denying his proposed findings of fact; (8) the circuit court erred in denying his proposed conclusions of law; and (9) the State committed prosecutorial misconduct during closing arguments.
Koutsoubinas correctly asserts that the judgment wrongly reflects Assault in the First Degree when he was found guilty of Assault in the Second Degree. This is a clerical error that should be rectified. But, based on our decision today, we need not address the remaining points of error.
4 Koutsoubinas raises no point of error as to the instruction on defense of others.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
The trial court is ultimately responsible for properly
instructing the jury. State v. Nichols, 111 Hawai‘i 327, 335,
141 P.3d 974, 982 (2006). "When jury instructions or the
omission thereof are at issue on appeal, the standard of review
is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading." State v. Metcalfe, 129 Hawai‘i
206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted).
"Erroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial." Id.
(citation omitted).
"[T]he real question becomes whether there is a
reasonable possibility that error might have contributed to
[the] conviction." Nichols, 111 Hawai‘i at 334, 141 P.3d at 981
(citation omitted). "[O]nce instructional error is
demonstrated, we will vacate, without regard to whether timely
objection was made, if there is a reasonable possibility that
the error contributed to the defendant's conviction." Id. at
337, 141 P.3d at 984.
For self-defense, "[t]he use of deadly force is
justifiable . . . if the actor believes that deadly force is
necessary to protect himself against death, serious bodily
injury, kidnapping, rape, or forcible sodomy." HRS § 703-304(2)
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2014). Recently, the Hawai‘i Supreme Court noted that the
Hawai‘i Standard Jury Instructions (HAWJIC) 7.01A misstates HRS
§ 703-304(2) by inserting "immediately" before "necessary." DM,
152 Hawai‘i at 477 n.13, 526 P.3d at 454 n.13.
In this case, the jury instruction for self-defense
tracked HAWJIC and included "immediately" before "necessary":
The use of deadly force upon or toward another person is justified if the defendant reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death, serious bodily injury, kidnapping, rape, and/or forcible sodomy. The reasonableness of the defendant's belief that the use of protective deadly force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant's position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the deadly force was used.
(Emphases added.)
Because the jury instruction in this case required
that the use of deadly force be "immediately necessary" as
opposed to "necessary," the instruction did not accurately
reflect the law. Thus, the instruction was wrong and
presumptively harmful.
We must now determine whether there was a reasonable
possibility this error may have contributed to Koutsoubinas'
For Assault in the Second Degree, the State had to
prove beyond a reasonable doubt that Koutsoubinas intentionally,
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
knowingly, or recklessly caused substantial bodily injury, or
that he recklessly caused bodily injury, to the complaining
witness (CW). HRS § 707-711(1)(a) and (1)(b) (Supp. 2018). And
the State would also have to disprove justification. HRS § 702-
205 cmt. (2014); HRS § 703-304(2).
Based on the evidence in the record, Koutsoubinas'
conviction of Assault in the Second Degree appears to depend on
whether his use of deadly force was justified. Koutsoubinas
testified he saw CW grab his girlfriend between the legs, slam
her to the ground, and run straight towards him.
During closing arguments, the State reiterated to the
jury that the instruction required "reasonableness of the
defendant's belief that the use of deadly force was immediately
necessary shall be determined from the viewpoint of a reasonable
person . . . ." The State then argued "a reasonable person in
Mr. Koutsoubinas' position would not reasonably believe that
deadly force was necessary" and the force used in this case "was
deadly and it was also excessive and not justifiable under the
circumstances as they existed . . . . "
Because the circuit court instructed the jury that the
reasonableness of Koutsoubinas' "belief that the use of deadly
force was immediately necessary shall be determined from the
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
viewpoint of a reasonable person," the State could disprove
Koutsoubinas' justification defense by showing a lack of
immediacy. See State v. Best, 150 Hawai‘i 401, 502 P.3d 1024,
No. CAAP-XX-XXXXXXX, 2022 WL 202570 at *4 (App. Jan. 24, 2022)
(SDO).
However, as the Hawai‘i Supreme Court noted, the plain
language of HRS § 703-304(2) does not require immediacy when
using deadly force. See DM, 152 Hawai‘i at 477 n.13, 526 P.3d at
454 n.13. In other words, the jury instruction provided the
State an additional way to disprove justification not afforded
in HRS § 703-304(2).
The jury convicted Koutsoubinas of Assault in the
Second Degree despite his testimony indicating he saw CW throw
Koutsoubinas' girlfriend to the ground and then run towards him.
One reasonable inference is that the jury did not find
Koutsoubinas' testimony credible as to the reason he believed
the use of deadly force was immediately necessary. We cannot
say that absent the erroneous instruction, the jury would have
still found Koutsoubinas was not justified in using deadly
force. Thus, there was a reasonable possibility the erroneous
instruction may have contributed to Koutsoubinas' conviction.
Based on the foregoing, we vacate the circuit court's
June 9, 2023 Judgment and July 18, 2023 Order Denying Motion for
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Mistrial, and remand this case to the circuit court for further
proceedings consistent with the summary disposition order.
DATED: Honolulu, Hawai‘i, August 23, 2024.
On the briefs: /s/ Keith K. Hiraoka Presiding Judge Gerald T. Johnson, for Defendant-Appellant. /s/ Clyde J. Wadsworth Associate Judge Lucas C. Burns, Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen County of Hawai‘i, Associate Judge for Plaintiff-Appellee.