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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 23-DEC-2020 08:17 AM Dkt. 13 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
WELDEN MANUEL, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 1CPC-XX-XXXXXXX)
DECEMBER 23, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.1
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Defendant-Appellant Welden Manuel was
charged with Assault in the Second Degree after he stabbed
complaining witness Lianel Dison (Dison) in the chest during an
altercation in Honolulu on October 13, 2017.
1 Associate Justice Richard W. Pollack, who was a member of the court when the oral argument was held, retired from the bench on June 30, 2020. ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
At trial, Dison and several Honolulu Police Department
(HPD) officers testified; Manuel did not. At the close of
trial, the circuit court instructed the jury on assault in the
second and third degrees. The circuit court also gave the jury
an assault in the third degree by mutual affray (Mutual Affray)
instruction. Neither party requested any other instruction.
The jury convicted Manuel of second-degree assault.
In his application for writ of certiorari, Manuel
asserts that Reckless Endangering in the Second Degree is an
included offense of assault in the second degree, and that there
was a rational basis in the evidence to acquit him of assault in
the second degree and to convict him of reckless endangering in
the second degree instead. Therefore, Manuel claims that the
circuit court was required to instruct the jury on reckless
endangering in the second degree.
We agree. Because we hold that reckless endangering
in the second degree is an included offense of assault in the
second degree and, under the circumstances of this case, there
was a rational basis in the evidence to acquit Manuel of assault
in the second degree and convict him of reckless endangering in
the second degree, the circuit court here was required to
instruct the jury on second-degree reckless endangering under
Hawaiʻi Revised Statutes (HRS) § 707-711(1)(d). We vacate the
ICA’s Judgment on Appeal which affirmed Manuel’s Judgment of
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Conviction and Sentence and remand to the circuit court for a
new trial.
I. BACKGROUND
On October 16, 2017, the State charged Manuel with
Assault in the Second Degree, in violation of HRS § 707-
711(1)(d).2
A. Trial
Trial began on February 27, 2018.3 During opening
statements, the State asserted that Manuel had been drinking on
the night of the altercation, Manuel instigated the attack, and
Dison did not fight back. During the defense’s opening
statement, Manuel’s attorney presented the theory that Manuel
was not guilty of second-degree assault because he acted in
self-defense.
1. Dison’s Testimony
Dison testified that on the night of October 13, 2017,
he was at Pier 38 preparing to leave on a fishing trip. Dison
explained that while he was walking to the fishing boat, he saw
2 HRS § 707-711(1)(d) (2015) provides,
Assault in the second degree. (1) A person commits the offense of assault in the second degree if:
. . . .
(d) The person intentionally or knowingly causes bodily injury to another with a dangerous instrument[.]
3 The Honorable Karen T. Nakasone presided.
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Manuel pass by on a bike. Although Dison and Manuel were close
at the time, Dison attempted to hide from Manuel because he
wanted to get on the boat. However, Manuel saw Dison and called
him over.
Instead of proceeding to the boat, Dison followed
Manuel to a dark restroom area on the pier. Although the area
was dark, Dison stated that he saw Manuel had bloodshot eyes.
Dison also claimed that Manuel slurred his speech and smelled of
alcohol. There, Manuel asked Dison, “why I do that[,]” to which
he responded “Did what?” Dison explained that he did not know
what Manuel was talking about and decided to leave. However, as
Dison tried to walk away, Manuel hit him on the head.
After being hit in the head, Dison claimed that he
turned around, saw Manuel open a folding knife with a three-inch
blade, and heard the blade click into place. Dison testified
that Manuel then stabbed him in the left side of his chest.
Dison claimed that after the stabbing, Manuel said, “That’s what
you get,” and tried to leave on his bike. However, Dison ran
after Manuel, grabbed the bike, and tried to pull it away from
Manuel.
Dison testified that he and Manuel struggled to gain
control of the bike, during which time Manuel sliced Dison’s
right arm with the knife. Dison claimed that he then let go of
the bike and yelled for someone to call 911.
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During cross-examination, Dison asserted that he had
not been drinking on the night of the incident. Additionally,
Dison admitted that he did not tell the detectives that he had
heard the blade click into place or that Manuel told him,
“That’s what you get.”
2. Officer Darrin Lum’s Testimony
HPD Officer Darrin Lum (Officer Lum) responded to the
call at Pier 38. Officer Lum testified that Dison was going in
and out of consciousness, and was not able to answer all of his
questions. Officer Lum believed Dison was intoxicated because
he could smell an odor of alcohol emanating from Dison.4 Officer
Lum observed Dison’s chest wound to be around 1.5 inches long
and 0.5 inches wide. Officer Lum stated that he did not see
anyone else in the area.
3. Officer Bryce Hamamoto’s Testimony
HPD Officer Bryce Hamamoto (Officer Hamamoto) arrived
at the scene and noticed that Dison was bleeding and had
injuries to his arm and a stab wound to his chest. Dison
appeared to be coherent but in a lot of pain. Officer Hamamoto
was assigned to search for suspects. Officer Hamamoto
eventually located Manuel near Kewalo Basin near a fishing boat
4 HPD Officer Jon Ishikawa (Officer Ishikawa) also responded to the call for assistance. Officer Ishikawa testified that he believed Dison was intoxicated because his speech was slurred and his eyes were glassy.
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called “Ping Tan.” Officer Hamamoto observed that Manuel
appeared to have been drinking.
4. Officer Arllen Laufasa’s Testimony
Officer Arllen Laufasa (Officer Laufasa) was also
present when the officers located Manuel on the night of the
altercation. Officer Laufasa testified that he searched Manuel
and recovered a red rag and a black folding knife from Manuel’s
pocket. The knife’s blade was three- to four-inches long and
matched the description Dison had provided of the weapon used in
the stabbing. The State submitted the knife into evidence as
State’s Exhibit 29.
5. Detective Eric Lalau’s Testimony
HPD Detective Eric Lalau (Detective Lalau) was
assigned to investigate the stabbing of Dison. Detective Lalau
met with Dison on the evening of the offense and observed that
Dison had a golf-ball-size bump on the back of his head and
wounds to his chest and right forearm. Detective Lalau was
unable to locate any witnesses besides Dison who could identify
a suspect. Detective Lalau testified that no surveillance video
footage of the stabbing was recovered. Detective Lalau stated
that a knife with an approximately three-inch blade was
recovered. Detective Lalau explained that he did not order DNA
testing for the knife because it did not appear to have blood on
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it, and that he was not able to conduct fingerprint testing on
the knife because it was taken from Manuel’s pocket.
6. The Defense
After the State rested, Manuel moved for judgment of
acquittal, which the circuit court denied. Manuel did not
testify at trial and did not call any witnesses to testify in
his defense.
B. Jury Instructions, Verdict, and Sentencing
On February 28, 2018, the circuit court and the
parties met to settle a portion of the jury instructions on the
record. Manuel’s attorney requested that the circuit court
instruct the jury on assault in the third degree under HRS
§ 707-712(1)(a) and (b).5 The State objected to instruction on
any included offense of assault in the second degree. Although
the circuit court itself proposed including an instruction on
third-degree assault, it deferred making a decision regarding
whether to include an instruction on assault in the third degree
to “see what comes out in the rest of the case.” The circuit
court additionally proposed instructing the jury on Mutual
5 HRS § 707-712(1) (2015) provides,
Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Negligently causes bodily injury to another person with a dangerous instrument.
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Affray under HRS § 707-712(2).6 Defense counsel agreed to the
circuit court’s proposals. However, the State objected. When
the circuit court asked if either party wanted to propose any
other instructions, neither party requested that the circuit
court give a reckless endangering in the second degree
instruction.
The circuit court subsequently instructed the jury on
the offenses of assault in the second degree, assault in the
third degree, and Mutual Affray.
The assault in the second degree instruction read,
A person commits the offense of Assault in the Second Degree if he intentionally or knowingly causes bodily injury to another person with a dangerous instrument.
There are three material elements of the offense of Assault in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt.
These three elements are:
1. That, on or about October 13, 2017 in the City and County of Honolulu, the Defendant caused bodily injury to Lianel Dison; and
2. That the Defendant did so with a dangerous instrument; and
3. That the Defendant did so intentionally or knowingly.
The circuit court further instructed that “‘[b]odily injury’
means physical pain, illness, or any impairment of physical
6 HRS § 707-712(2) (2015) provides,
(2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.
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condition[,]” and that “‘[s]erious bodily injury’ means bodily
injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.”
The circuit court also instructed the jury on assault
in the third degree, HRS § 707-712(1)(b), and Mutual Affray,
HRS § 707-712(2). The assault in the third degree instruction
read,
A person commits the offense of Assault in the Third Degree if he negligently causes bodily injury to another person with a dangerous instrument.
There are three material elements of the offense of Assault in the Third Degree, each of which the prosecution must prove beyond a reasonable doubt.
1. That, on or about October 13, 2017 in the City and County of Honolulu, the Defendant caused bodily injury to Lianel Dison; and
2. That the defendant did so with a dangerous instrument; and
3. That the Defendant did so negligently.
The instruction for Mutual Affray read,
If you find that the prosecution has proven the offense of Assault in the Third Degree beyond a reasonable doubt, then you must also consider whether the fight or scuffle was entered into by mutual consent, whether expressly or by conduct.
You must determine whether the prosecution has proven beyond a reasonable doubt that the fight or scuffle was not entered into by mutual consent. This determination must be unambiguous and is to be indicated by answering ‘Yes’ or ‘No’ on a special interrogatory that will be provided to you.
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On March 1, 2018, the jury found Manuel guilty of
assault in the second degree. On May 3, 2018, the circuit court
sentenced Manuel to an indeterminate term of five years’
incarceration.
C. ICA Proceedings
On May 18, 2018, Manuel filed a notice of appeal to
the ICA. In his opening brief to the ICA, Manuel argued that
the circuit court erred when it failed to instruct the jury on
the misdemeanor offense of reckless endangering in the second
degree. Manuel argued that second-degree reckless endangering
is an included offense of second-degree assault, and that “there
was a rational basis in the evidence to acquit [Manuel] of
assault in the second degree and convict him of reckless
endangering in the second degree.” Therefore, Manuel contended,
the circuit court was required to instruct the jury on reckless
In its answering brief, the State argued that second-
degree reckless endangering is not an included offense of
assault in the second degree because the conduct is not the
same. In particular, the State asserted that second-degree
assault requires use of a dangerous instrument while reckless
endangering in the second degree does not. Additionally, the
State averred that the results of the charges are not the same
because second-degree assault requires bodily injury whereas
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reckless endangering in the second degree requires serious
bodily injury or death. The State further contended that even
if reckless endangering in the second degree is an included
offense, there was no rational basis in the record for
acquitting Manuel of second-degree assault and convicting him of
reckless endangering in the second degree. The State argued
that Manuel’s conduct was clearly intentional or knowing, so
there was no evidence that Manuel had acted recklessly to
support a conviction for second-degree reckless endangering.
Manuel did not file a reply brief.
The ICA entered a Summary Disposition Order on
April 18, 2019. The ICA affirmed the circuit court’s Judgment
of Conviction and Sentence, and held that, pursuant to its
holding in State v. Magbulos, 141 Hawaiʻi 483, 413 P.3d 387 (App.
2018), there was “no reasonable possibility that the Circuit
Court’s failure to instruct on the lower-level reckless
endangering offense affected the outcome of this case.”
The ICA therefore affirmed the circuit court’s
Judgment of Conviction and Sentence. The ICA issued its
Judgment on Appeal on May 20, 2019.
We hold that the ICA erred and remand this matter to
the circuit court.
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II. STANDARD OF REVIEW
Whether an offense is an included offense of another
is a question of law. State v. Friedman, 93 Hawaiʻi 63, 68, 996
P.2d 268, 273 (2000). The appellate courts review questions of
law de novo under the right/wrong standard of review. Id.
III. DISCUSSION
A. The circuit court erred in failing to instruct the jury on the elements of reckless endangering in the second degree.
Manuel argues that the circuit court should have sua
sponte instructed the jury on reckless endangering in the second
degree, which, he asserts, is an included offense of assault in
the second degree.
This court has held that “jury instructions on lesser-
included offenses must be given where there is a rational basis
in the evidence for a verdict acquitting the defendant of the
offense charged and convicting the defendant of the included
offense.” State v. Flores, 131 Hawaiʻi 43, 51, 314 P.3d 120, 129
(2013) (citing State v. Stenger, 122 Hawaiʻi 271, 296, 226 P.3d
441, 466 (2010)). However, this court does not notice errors
that were not raised before the circuit court unless this court
determines that plain error has been committed and substantial
rights have been affected thereby. State v. Miller, 122 Hawaiʻi
92, 100, 223 P.3d 157, 165 (2010).
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At trial, neither party requested that the circuit
court instruct the jury on reckless endangering in the second
degree. Therefore, despite the circuit court’s duty to instruct
on included offenses, any error in failing to do so is still
analyzed under plain error review. See Miller, 122 Hawaiʻi at
100, 223 P.3d at 165. We review the circuit court’s failure to
instruct the jury on reckless endangering in the second degree
for plain error because, as there was a rational basis in the
evidence to acquit Manuel of assault in the second degree and
convict him of reckless endangering in the second degree, the
circuit court’s failure to instruct the jury on reckless
endangering in the second degree affected Manuel’s substantial
rights. Id.
1. Reckless endangering in the second degree is an included offense of assault in the second degree.
Manuel argues that reckless endangering in the second
degree is an included offense of assault in the second degree.
Manuel contends that, based on the statutory definitions of
second-degree assault and reckless endangering in the second
degree, “it is impossible to commit assault in the second degree
based on intentionally or knowingly causing bodily injury
without committing reckless endangering in the second degree.”
HRS § 707-711(1)(d) provides,
(1) A person commits the offense of assault in the second degree if:
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(d) The person intentionally or knowingly causes bodily injury to another with a dangerous instrument[.]
HRS § 707-714(1)(a) (2015) provides,
(1) A person commits the offense of reckless endangering in the second degree if the person:
(a) Engages in conduct that recklessly places another person in danger of death or serious bodily injury[.]
HRS § 701-109(4) (2015) provides that an offense is
included in another offense when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.
“[T]he general rule is that ‘an offense is included if
it is impossible to commit the greater without also committing
the lesser.’” Friedman, 93 Hawaiʻi at 72, 996 P.2d at 277
(quoting State v. Burdett, 70 Haw. 85, 87-88, 762 P.2d 164, 166
(1988)). Additionally, in applying HRS § 701-109(4)(a), we have
held that “several factors may be considered in determining
whether an offense is a lesser included offense of another:
(1) the degree of culpability; (2) the legislative statutory
scheme; and (3) the end result.” Friedman, 93 Hawaiʻi at 72, 996
P.2d at 277 (citing State v. Alston, 75 Haw. 517, 533, 865 P.2d
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157, 166 (1994)). Based on the general rule, the three factors
enunciated in Alston, and the fact that reckless endangering in
the second degree requires an intermediate degree of culpability
between assault in the second degree and the instructed offense
of assault in the third degree, we hold that reckless
endangering in the second degree, HRS § 707-714(1)(a), is an
included offense of assault in the second degree, HRS § 707-
711(1)(d).
a. It is impossible to commit assault in the second degree without also committing reckless endangering in the second degree.
Under the general rule, second-degree reckless
endangering appears to be an included offense of assault in the
second degree because it is impossible to commit second-degree
assault without also committing reckless endangering in the
second degree. See Friedman, 93 Hawaiʻi at 72, 996 P.2d at 277.
First, the level of culpability required to commit assault in
the second degree, intentionally or knowingly, subsumes the
level of culpability required to commit reckless endangering in
the second degree, recklessly. See HRS § 702-208 (2015) (“When
the law provides that recklessness is sufficient to establish an
element of an offense, that element also is established if, with
respect thereto, a person acts intentionally or knowingly.”).
In other words, if a person acts knowingly or intentionally, a
state of mind element that requires recklessness is satisfied.
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Further, based upon the statutory definitions in HRS Chapter
707, one cannot cause bodily injury with a dangerous instrument
(assault in the second degree) without placing that person in
danger of death or serious bodily injury (reckless endangering
in the second degree). HRS § 707-700 (2015) provides,
“[d]angerous instrument” means any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
Therefore, although the statutory definitions of bodily injury7
and serious bodily injury8 are different, the use of a dangerous
instrument necessarily places the victim in danger of death or
serious bodily injury. Accordingly, reckless endangering in the
second degree is an included offense of assault in the second
degree.
b. The Alston factors indicate that reckless endangering in the second degree is an included offense of assault in the second degree.
The factors set forth in Alston also indicate that
second-degree reckless endangering is an included offense of
assault in the second degree. First, “[r]egarding the degree of
culpability, the rule is that the lesser included offense cannot
7 HRS § 707-700 provides, “‘[b]odily injury’ means physical pain, illness, or any impairment of physical condition.”
8 HRS § 707-700 provides, “‘[s]erious bodily injury’ means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
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have a mental state greater than or different from that which is
required for the charged offense.” Alston, 75 Haw. at 534, 865
P.2d at 166 (emphasis in original). The Alston court explained
that “different” means that the mental states intend a different
result, not different levels of culpability. See id. (holding
that specific intent to cause another’s absence from an official
proceeding is different from intent to cause, or recklessness in
causing, terror.). In other words, the level of culpability
(i.e., intentionally, knowingly, recklessly, or negligently) of
the lesser offense can be less than that of the greater offense,
but the intended result cannot be different. Here, the mental
states for both crimes require some level of intent that a
person become injured by the criminal conduct, so the mental
state is not impermissibly different under the Alston factors.
Moreover, the level of culpability for reckless endangering in
the second degree, recklessness, is less than the level of
culpability required for assault in the second degree,
intentional or knowing. HRS § 702-208 cmt. Therefore, second-
degree reckless endangering does not have a mental state that is
greater than or different from second-degree assault.
Second, “[t]he legislative statutory scheme of both
the greater and lesser offense should reflect a legislative
intent to protect similar societal interests.” Friedman, 93
Hawaiʻi at 72, 996 P.2d at 277. The classification of two crimes
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under different penal chapters indicates the legislature’s
intent to protect different societal interests and that one
crime would not be the lesser-included of the other. Burdett,
70 Haw. at 89, 762 P.2d at 167. While the inclusion of two
crimes in the same penal chapter does not necessarily mean that
one is the lesser-included offense of the other, see State v.
Freeman, 70 Haw. 434, 437, 774 P.2d 888, 890 (1989), it does
indicate that the legislature intended to protect similar
societal interests. See Burdett, 70 Haw. at 89, 762 P.2d at
167. Here, the offenses of assault in the second degree and
reckless endangering in the second degree are set forth in the
same penal chapter – HRS Chapter 707 “Offenses Against the
Person.” The forbidden end results, bodily injury to a person
and placing a person in danger of serious bodily injury or
death, contemplate protecting the same societal interest –
preventing people from physically injuring other people.
Therefore, the legislative statutory scheme for both offenses
reflects an intent to protect similar societal interests.
Finally, the “lesser included offense should produce
the same end result as the greater charged offense.” Alston, 75
Haw. at 535, 865 P.2d at 166-67. This factor weighs in favor of
second-degree reckless endangering being an included offense of
assault in the second degree because both offenses result in a
person being placed in danger of serious bodily injury or death.
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If a person is merely injured with a dangerous instrument
(which, by definition, must be capable of producing death or
serious injury), then the person was placed in danger of death
of serious bodily injury. In other words, but for some luck,
the dangerous instrument could have - but did not - produce
death or serious bodily injury. The end result of second-degree
assault, then, is injury plus the accompanying danger of
something worse. Similarly, the end result of reckless
endangering in the second degree is that a person is placed in
danger of death or serious bodily injury.
c. Reckless endangering in the second degree is an included offense because it relies on an intermediate level of culpability between assault in the second and third degrees.
Additionally, it defies common sense to include
assault in the third degree as an included offense of second-
degree assault while excluding reckless endangering in the
second degree. The relevant distinction between assault in the
second and third degrees in the circuit court’s jury
instructions is the defendant’s level of culpability. In order
to convict Manuel for second-degree assault, the jury was
required to find that defendant “intentionally or knowingly
cause[d] bodily injury to another with a dangerous instrument.”
HRS § 707-711(d) (emphasis added). In order to convict Manuel
for third-degree assault, by contrast, the jury was required to
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find that defendant “negligently cause[d] bodily injury to
another with a dangerous instrument.” HRS § 707-712(b)
(emphasis added). Our penal code identifies four tiers of
culpability. HRS § 702-206 cmt. In descending order, these
tiers are intentionally, knowingly, recklessly, and negligently.
HRS § 702-208 cmt. A situation in which a defendant recklessly
caused bodily injury to another with a dangerous instrument is
therefore necessarily an intermediate between assault in the
second and third degrees. Thus, reckless endangering in the
second degree, an offense in which a defendant recklessly causes
bodily injury to another with a dangerous instrument, must
constitute an included crime of second-degree assault.
Second-degree reckless endangering is a lesser-
included offense of assault in the second degree. Under the
general rule, one cannot commit second-degree assault without
also committing reckless endangering in the second degree.
Further, the Alston factors are satisfied because second-degree
reckless endangering has the same mens rea but a lesser degree
of culpability than assault in the second degree, the
legislature intended for the two crimes to protect the same
societal interests, and the two crimes produce the same result.
Lastly, given that second-degree reckless endangering is based
upon an intermediate degree of culpability between assault in
the second and third degrees, reckless endangering in the second
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degree must also be considered an included offense of second-
degree assault. We therefore hold that reckless endangering in
the second degree is an included offense of assault in the
second degree under HRS § 707-711(1)(d).
2. There was a rational basis in the evidence to acquit Manuel of assault in the second degree and convict him of reckless endangering in the second degree.
Manuel argues that there is a rational basis to
support the second-degree reckless endangering instruction.
Manuel asserts that “[t]here is no question that Manuel wielded
the knife in complete disregard of the risk that his conduct
placed Dison in danger of death or serious bodily injury,” and
that
based on the evidence that was presented, the jury could have acquitted [Manuel] of the charged offense of assault in the second degree based on intentionally or knowingly causing bodily injury with a dangerous instrument and convicted him of the included offense of recklessly engaging in conduct that placed Dison in danger of death or serious bodily injury.
We have made clear that “jury instructions on lesser-
included offenses must be given where there is a rational basis
in the evidence for a verdict acquitting the defendant of the
offense.” Flores, 131 Hawaiʻi at 51, 314 P.3d at 128.
Here, there was a rational basis in the evidence to
acquit Manuel of second-degree assault and to convict him of
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reckless endangering in the second degree based on the state of
mind and conduct elements of second-degree reckless endangering.
First, there was a rational basis for the jury to find
that Manuel acted recklessly. Notably, Dison’s testimony raises
questions regarding his credibility. For example, although
Dison spoke with detectives after the incident, he did not tell
the detectives about crucial details such as hearing the knife
blade click into place or that Manuel said “That’s what you
get.” Additionally, although Dison asserted that he had not
been drinking, at least two officers testified that they smelled
alcohol on Dison. Moreover, the officers testified that Manuel
appeared to have been drinking on the night of the incident as
well. Thus, a reasonable juror could have found that Dison’s
testimony was not entirely credible and that Manuel lacked the
requisite intent, i.e., intentionally or knowingly, to commit
second-degree assault. However, a reasonable juror may still
have determined that an intoxicated Manuel should have
understood the potential risk of serious injury arising from
opening a knife during an altercation. Accordingly, the jury
could have found that Manuel acted recklessly.
Second, there was a rational basis for the jury to
find that Manuel’s conduct (stabbing and cutting Dison) placed
Dison in danger of serious bodily injury or death. Again,
HRS § 707-700 defines “dangerous instrument” as a firearm or a
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“weapon, device, instrument, material, or substance . . . ,
which in the manner it is used or is intended to be used is
known to be capable of producing death or serious bodily
injury.” (Emphasis added.) The circuit court instructed the
jury on assault in the second and third degrees with a dangerous
instrument. The use of a dangerous instrument placed Dison in
danger of death or serious injury by definition, because the
statutory definition requires a dangerous instrument to be used
or intended to be used in a way that is capable of causing death
or serious bodily injury. See HRS § 707-700. Even setting the
dangerous instrument instruction aside, there was a rational
basis in the evidence for the jury to conclude that Manuel
placed Dison in danger of death or serious bodily injury.
Manuel stabbed Dison in the chest with a three-inch blade. It
was dark and Manuel may have been intoxicated. Manuel could
have severed a major blood vessel or punctured a lung, resulting
in Dison’s death or serious bodily injury. Therefore, there was
a rational basis in the evidence for the jury to find that the
conduct element of reckless endangering in the second degree was
met.
There was consequently a rational basis in the
evidence to support the state of mind and conduct elements of
second-degree reckless endangering. Therefore, there was a
rational basis in the evidence to convict Manuel of reckless
23 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
endangering in the second degree, and the circuit court erred
when it failed to instruct the jury accordingly.
IV. CONCLUSION
We hold that reckless endangering in the second degree
is a lesser-included offense of assault in the second degree.
Because, in this case, there was a rational basis in the
evidence to acquit Manuel of assault in the second degree and to
convict him of reckless endangering in the second degree, the
circuit court erred in failing to instruct the jury on reckless
endangering in the second degree. Accordingly, we vacate the
ICA’s May 20, 2019, Judgment on Appeal, which affirmed the
circuit court’s May 3, 2018, Judgment of Conviction and Sentence
and remand for a new trial.
William H. Jameson, Jr. /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Loren J. Thomas for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson