Assault in the Second Degree with a Dangerous Instrument and the Included Offense of Reckless Endangering in the Second Degree

 State v. Manuel (HSC December 23, 2020)

Background. Welden Manuel was charged with assault in the second degree by knowingly or intentionally causing bodily injury with a dangerous instrument. At trial, Lianel Dison, the complainant, testified that one night he was at Pier 38 in Honolulu getting ready to set out on a fishing trip. He saw Manuel pass by on a bike. Manuel then called out to Dison toward a dark bathroom area on the pier. He testified that he could see Manuel had bloodshot eyes, slurred his words, and smelled of alcohol. Dison walked over and Manuel asked him “why I do that.” Dison responded, “did what?” Dison tried to walk away when Manuel hit him on the head. Dison turned around saw Manuel open a folding knife with a three-inch blade and click into place. Dison testified that Manuel stabbed him in the chest and said, “That’s what you get.” He tried to ride off on his bike, but Dison grabbed it and pulled it way. They struggled for control of the bike when Manuel sliced dison’s right arm with the knife. He yelled for someone to call 911. On cross-examination, Dison claimed that he was not drinking that night and admitted that he never told the police that he heard the blade click or that Manuel said, “that’s what you get.” Investigating officers testified that when they arrived at the scene, Dison was moving in and out of consciousness and smelled of alcohol. Manuel did not testify.

 

The circuit court, with Hon. Judge Karen Nakasone presiding, instructed the jury with the elements of assault in the second degree, assault in the third degree, and mutual affray. Manuel was found guilty as charged and sentenced to five year imprisonment. Manuel appealed to the ICA and argued for the first time that the misdemeanor offense of reckless endangering in the second degree was a necessary lesser-included offense. The ICA disagreed and affirmed. Manuel petitioned a writ of certiorari to the HSC.

 

Failure to Raise the Issue Limits Appellate Court to Plain Error Review—even for Jury Instructions. The elements of “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 Hawai'i 43, 51, 314 P.3d 120, 129 (2013). Because the issue was never raised at trial, the HSC on appeal will not recognize the error unless it affects the substantial rights of the accused. State v. Miller, 122 Hawai'i 92, 100, 223 P.3d 157, 165 (2010). Here, the HSC pointed out that despite the lower court’s duty to correctly instruct the jury on included offenses, the failure to instruct the jury here about reckless endangering is limited to plain error review. Id. Nevertheless, the plain error review is appropriate because the failure to instruct the jury on reckless endangering affected Manuel’s substantial rights.

 

The Ol’ Nichols Beef. This brief threshold issue puts to rest some confusion that has been bouncing around the appellate courts for some time. When it comes to jury instructions, the lower court has a duty to provide correct instructions regardless of whether a party raises the instruction. In State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006), the HSC held “once 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. The HSC in doing so merged plain error with harmless error. This drew a sharp objection from Justice Nakayama. Id. at 342, 141 P.3d at 989 (Nakayama, J., concurring and dissenting). She warned that the merging of standards would wreak “unintended havoc.” Id. at 343, 141 P.3d at 990. The rule in Nichols was cited as recently as this year in State v. Kato, 147 Hawai'i 478, 498, 465 P.3d 925, 945 (2020). Now, the HSC reviewed a case in which no objection was made to the jury instructions at trial. The HSC did not address that the problem in Nichols and instead applied the plain error analysis. Whether this is an implicit overruling of Nichols remains to be seen.

 

Assault in the Second Degree with a Dangerous Instrument and the Included Offense of Reckless Endangering in the Second Degree. Manuel was prosecuted with one count of assault in the second degree, which is committed when a person intentionally or knowingly causes bodily injury to another with a dangerous instrument. HRS § 707-711(1)(d). Reckless endangering in the second degree arises when a person “[e]ngages in conduct that recklessly places another person in danger of death or serious bodily injury[.]” HRS § 707-714(1)(a).

 

Generally “an offense is included if it is impossible to commit the greater without also committing the lesser.” State v. Burdett, 70 Haw. 85, 87-88, 762 P.2d 164, 166 (1988). See also HRS § 701-109(4). The determination of a lesser-included offense also hinges on factors: “(1) the degree of culpability; (2) the legislative statutory scheme; and (3) the end result.” State v. Friedman, 93 Hawai'i 63, 72, 996 P.2d 268, 277 (2000) (citing State v. Alston, 75 Haw. 517, 533, 865 P.2d 157, 166 (1994)). The HSC here held that reckless endangering in the second degree is an included offense to the charge of assault in the second degree.

 

First, the HSC explained that it was impossible to commit the offense of assault in the second degree without committing the reckless endangering in the second degree. Assault in the second degree requires intentional or knowing conduct, which subsumes the reckless conduct reckless endangering. Moreover, a person cannot cause bodily injury with a dangerous instrument without placing that person in danger of death or serious bodily injury—an element of reckless endangering in the second degree. The HSC explained that a “dangerous instrument” means any firearm or any object “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.” The HSC also noted that the Alston factors suggest that it is an included offense.

 

The HSC also noted that including assault in the third degree without including reckless endangering “defies common sense.” In order to convict Manuel of assault in the third degree, the jury needs to find proof beyond a reasonable doubt that he negligently caused bodily injury with a dangerous instrument. HRS § 707-712(b). The intermediate level would be reckless endangering in the second degree. As the HSC explained the tiers of culpability are intentionally, knowingly, recklessly, and negligently.

 

The Facts Show a Rational Basis for the Jury to Acquit on Assault 2d, but Convict on Reckless Endangering 2d. The HSC examined the record and held that there was a rational basis to convict on the uninstructed included offense. Dison’s credibility was at issue. He left out key parts of his trial testimony to the investigating police and the officers believed he might have been drinking. It was reasonable for the jury to conclude that Manuel was also intoxicated and may not have acted intentionally or knowingly. However, he could have been reckless and drunk with the knife in the dark thereby making him guilty of reckless endangering in the second degree. And so the HSC vacated judgment and remanded the case for a new trial.