NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL PROM THE FAMILY COURT OF THE THIRD CIRCUIT (FC-CR. NO. 08-1-0182).
Robert K. Allen for Defendant-Appellant.
Shaunda A.K. Liu Deputy Prosecuting Attorney County of Hawai'i for Plaintiff-Appellee.
Nakamura, Chief Judge, Foley and Leonard, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Raymond John Boots, Jr. (Boots) appeals from the Family Court of the Third Circuit's (Family Court) Amended Judgment of Conviction and Sentence, filed October 27, 2009. Boots was charged with and convicted of Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes (HRS) § 709-905 (Supp. 2012). Boots was sentenced to two days in jail and two years of probation, in addition to fees. This timely appeal followed.
Boots raises three points on appeal: (1) the Family Court lacked substantial evidence to support the conclusion that Jazmin Boots's (Jazmin) physical intervention in the argument between Boots and Janice Boots (Janice) was "not unlawful force"; (2) the Family Court erred by holding that Boots could not rely on a self-defense claim; and (3) Boots was denied effective assistance of counsel because his trial counsel (Trial Counsel) did not challenge Jazmin's perception of the events by introducing evidence or eliciting testimony related to her mental health and medication history and for failing to call Jinjer Boots (Jinjer) as a witness.
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, we resolve Boots's contentions as follows:
(1) Unlawful force is
force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or would constitute an offense except for a defense not amounting' to a -justification to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious or substantial bodily injury.
HRS § 703-300 (1993) (emphasis added). Therefore, an actor's use of force is "not unlawful" if she has a defense amounting to a justification to the use of force. See HRS § 703-301 (1993); HRS § 703-300. One such justification is the use of force for the protection of others,  as provided in HRS § 703-305(1):
[T]he use of force upon or toward the person of another is justifiable to protect a third person when: (a) Under the circumstances as the actor believes them to be, the person whom the actor seeks to protect would be justified in using such protective force; and (b) The actor believes that the actor's intervention is necessary for the protection of the other person.
(Footnote added.) The attendant circumstances when determining whether this type of justification applies "must be viewed from a subjective point of view, that is, as the [actor] believes them to be." State v. Pavao, 81 Hawai'i 142, 145, 913 P.2d 553, 556 (App. 1996) (citing HRS § 703-305; quotation marks and brackets omitted).
Boots correctly notes that Jazmin did not explicitly testify that she intervened in her parents' argument in order to protect Janice. However, substantial evidence exists to support the Family Court's conclusion that Jazmin's use of force was "not unlawful." The Family Court, as trier of fact, was "free to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence." State v. Batson, 73 Haw. 236, 249, 831 P.2d 924, 931 (1992) (citation omitted). Jazmin testified that: (1) she heard her parents arguing in her sisters' room; (2) she heard a "thud, " followed by her sisters screaming; and (3) upon arriving at her sisters' room, Jazmin saw Janice on the floor and her two sisters pushing Boots. From this testimony, the Family Court could have reasonably inferred that Jazmin believed that Boots had pushed or otherwise harmed Janice. This inference would provide substantial evidence to support the Family Court's conclusion that Jazmin's force was not unlawful, as Jazmin could have reasonably believed that Janice herself would be justified in using force to protect ...