otective order be issued for such further period as
the court deems appropriate, not to exceed three years from the date the
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IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI
#
I
--o0o---
STATE OF HAWAI
#
I, Plaintiff-Appellee, v.
GRANT T. SUGIHARA, Defendant-Appellant
NO. 24584
APPEAL FROM FAMILY COURT OF THE FIRST CIRCUIT
(FC-CR. NO. 01-1-1697)
April 2, 2003
BURNS, C.J., LIM and FOLEY, JJ.
OPINION OF THE COURT BY LIM, J.
Grant T. Sugihara (Sugihara) appeals the August 31,
2001 judgment of the family court of the first circuit, the
Honorable Steven S. Alm, judge presiding, that convicted him of
the offense of violation of an order for protection. Hawaii
Revised Statutes (HRS) §§ 586-5.5 (Supp. 2000) & 586-11 (Supp.
2002).
1
The State had alleged that on May 3, 2001, Sugihara FOR PUBLICATION
protective order is granted. HRS § 586-11 (Supp. 2002) provides, in relevant
part: Whenever an order for protection is granted pursuant to this chapter,
a respondent or person to be restrained who knowingly or intentionally
violates the order for protection is guilty of a misdemeanor.
2
The January 13, 2000 order for protection prohibited Defendant-
Appellant Grant T. Sugihara (Sugihara) from,
inter alia
, contacting his ex-
wife and the two of their minor children (except for visitation) living with
her, and coming or passing within one hundred yards of his ex-wifes
residence.
3
Count I of the May 7, 2001 complaint charged Sugihara with the
offense of abuse of family and household members. HRS § 709-906 (Supp. 2001).
The State had alleged that Sugihara, while at his ex-wifes residence, threw
an object that hit her in the right thumb. The jury found Sugihara not guilty
of this charge.
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violated an order for the protection of his ex-wife, by showing
up unexpectedly at the townhouse where she and two of their minor
children reside.
2
Relying upon the Hawai
#
i Supreme Courts opinion in
State v. Aganon, 97 Hawai
#
i 299, 36 P.3d 1269 (2001), Sugihara
argues, for the first time on appeal, that the family courts
jury instruction on the offense was erroneous and invites us, by
way of purported prejudice, to notice plain error. We decline,
and affirm.
I. Background.
The family court instructed the jury on the offense of
violation of an order for protection, as follows:
In Count II of the Complaint,
3
Defendant GRANT T. SUGIHARA is
charged with the offense of Violation of An Order for Protection.
A person commits the offense of Violation of An Order for
Protection if he intentionally or knowingly engages in conduct which is
prohibited by an Order for Protection issued by a Judge of the Family
Court, and the Defendant was present at the hearing in which the Order
for Protection was issued or was personally served, and the Order for
Protection was in effect at the time of the prohibited conduct. FOR PUBLICATION
4
This definition, and those that follow it, are taken verbatim from
HRS § 702-206 (1993).
5
Hawai
#
i Rules of Penal Procedure (HRPP) Rule 30(d) (West 2001)
provides, in relevant part, that any instructions prepared by the court . . .
shall be reduced by the court to writing, and counsel shall be entitled to be
heard thereon.
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There are four material elements of the offense of Violation of An
Order for Protection, each of which the prosecution must prove beyond a
reasonable doubt.
These four elements are:
1.
That on or about May 3, 2001, on the island of Oahu, an
Order for Protection issued by a Judge of the Family Court
prohibiting the Defendant from engaging in certain conduct
was in effect; and
2.
That the Defendant was present at the hearing in which the
Judge of the Family Court issued the Order for Protection or
was personally served with a copy of the Order for
Protection prior to May 3, 2001; and
3.
That the Defendant engaged in conduct which was prohibited
by the Order for Protection; and
4.
That the Defendant engaged in said conduct intentionally or
knowingly.
A person acts intentionally with respect to his conduct when it is
his conscious object to engage in such conduct.
4
A person acts intentionally with respect to attendant
circumstances when he is aware of the existence of such circumstances or
believes or hopes that they exist.
A person acts intentionally with respect to a result of his
conduct when it is his conscious object to cause such a result.
A person acts knowingly with respect to his conduct when he is
aware that his conduct is of that nature.
A person acts knowingly with respect to attendant circumstances
when he is aware that such circumstances exist.
A person acts knowingly with respect to a result of his conduct
when he is aware that it is practically certain that his conduct will
cause such a result.
(Footnotes supplied.) Sugihara did not object to this jury
instruction at any time below -- he did not object when the
family court settled jury instructions (he in fact agreed to the
instruction),
5
he did not object when the family court read this
instruction to the jury, and he did not object when the family FOR PUBLICATION
6
HRPP Rule 30(f) (West 2001) provides, in relevant part:
Opportunity shall be given [the parties] to make . . . objection [to the
courts jury instructions] out of the hearing of the jury . . . . after the
court has instructed the jury.
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court had finished reading all of its instructions to the jury.
6
II. Standards of Review.
A. Plain Error.
Because Sugihara failed to object to the jury
instruction
sub judice
, he asserts plain error on appeal.
Hawai
#
i Rules of Penal Procedure (HRPP) Rule 52(b)
(West 2001) provides that, Plain errors or defects affecting
substantial rights may be noticed although they were not brought
to the attention of the court. Obversely, HRPP Rule 52(a) (West
2001) provides that, Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.
Specifically, HRPP Rule 30(f) (West 2001) provides, in pertinent
part, that, No party may assign as error the giving or the
refusal to give, or the modification of, an instruction, . . .
unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which the
party objects and the grounds of the objection. See also State
v. Corpuz, 3 Haw. App. 206, 216, 646 P.2d 976, 983 (1982) (citing
the predecessor rule to HRPP Rule 30(f) -- Rule 30(e), HRPP
(1977), then holding that, Since the instruction was not
prejudicial to the defendant and the defendant made no objection, FOR PUBLICATION
-5-
he cannot now raise the question on appeal. State v. Onishi, 59
Haw. 384, 581 P.2d 763 (1978); State v. McNulty, 60 Haw. 259, 588
P.2d 438 (1978).).
The general rule is that a reviewing court will not
consider issues not raised before the trial court. Corpuz, 3
Haw. App. at 211, 646 P.2d at 980. This courts 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
counsels mistakes. State v. Kelekolio, 74 Haw. 479, 515, 849
P.2d 58, 74-75 (1993) (citation omitted). This 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) (brackets, citation
and internal quotation marks omitted).
B. Jury Instructions.
The standard of review for a trial courts issuance or refusal of
a jury instruction is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading. State v. Balanza, 93 Hawai
#
i 279, 283, 1
P.3d 281, 285 (2000) (quotation [(sic)] and internal quotation marks
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. State v. Sua, 92 Hawai
#
i 61,
69, 987 P.2d 959, 967 (1999) (quoting State v. Pinero, 70 Haw. 509, 527,
778 P.2d 704, 716 (1989) (quotation [(sic)] omitted)). In other words, FOR PUBLICATION
-6-
error is not to be viewed in isolation and considered purely in
the abstract. It must be examined in the light of the entire
proceedings and given the effect which the whole record shows it
to be entitled. In that context, the real question becomes
whether there is a reasonable possibility that error may have
contributed to conviction.
Id. (quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308 (1981)
(citations omitted)).
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) (citing Pinero, 75 Haw. at 291-92,
859 P.2d at 1374). If the substantial rights of the defendant have been
affected adversely, the error may be considered as plain error. See id.
Aganon, 97 Hawai
#
i at 302, 36 P.3d at 1272 (original brackets
omitted).
III. Discussion.
A. Aganon.
The relevant circumstances confronting the Aganon court
were as follows:
After closing arguments, the circuit court instructed the jury on
murder in the second degree:
The defendant is charged with the offense of Murder in the Second
Degree. A person commits the offense of Murder in the Second
Degree if she intentionally or knowingly causes the death of
another person. There are two material elements of the offense of
Murder in t