NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 09-1-0719)
Randall K. Hironaka (Miyoshi & Hironaka) for Defendant-Appellant.
Stephen K. Tsushima Deputy Procecuting Attorney City and County of Honolulu, for Plaintiff-Appellee.
Foley, Presiding J., Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Paul C.K. Kaeo (Kaeo) appeals from the "Judgment Of Conviction And Sentence" entered December 5, 2011, in the Circuit Court of the First Circuit (circuit court). The circuit court convicted Kaeo of Reckless Manslaughter in violation of Hawaii Revised Statutes (HRS) § 707-702 (Supp. 2012) in the death of Charles Kahumoku (Kahumoku), and sentenced him to twenty years of imprisonment.
On appeal, Kaeo contends the circuit court erred when it:
(1) failed to properly instruct the jury as to the included offense of assault;
(2) excluded relevant evidence; and
(3) interrupted Kaeo's closing argument to disagree on the issue of assault.
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 by the parties, as well as the relevant statutory and case law, we conclude Kaeo's appeal is without merit.
(1) Kaeo contends the circuit court erred by failing to properly instruct the jury on the included offense of Assault in the First and Second Degree. A trial court must instruct the jury on any included offense "when 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. Haanio, 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001). However, when the jury convicts the defendant of the charged offense or a greater included offense, a trial court's failure to instruct on a lesser included offense is a harmless error. State v. Pauline, 100 Hawai'i 356, 381, 60 P.3d 306, 331 (2002) (quoting Haanio, 94 Hawai'i at 415-16, 16 P.3d at 256-57).
(2) Kaeo contends the circuit court abused its discretion when it granted the State of Hawai'i's (State) motion in limine and excluded relevant evidence that Kahumoku and Kaeo's wife (Wife) were first cousins involved in a romantic relationship. At a hearing held July 29, 2011, Kaeo offered this evidence to refute any premeditation on his part to harm Kahumoku. Under his theory, the familial relationship made it easier for Kaeo to find Kahumoku if Kaeo had wanted to previously hurt Kahumoku. On appeal, Kaeo contends the circuit court omitted a crucial piece of evidence supporting his theory that he was protecting himself or Wife at the time of the incident.
A trial court's decision on a motion in limine is an evidentiary ruling that determines the relevance and potential prejudice of the evidence at issue. Kobashigawa v. Silva, 129 Hawai'i 313, 321-22, 300 P.3d 579, 587-88 (2013). Relevant evidence is any evidence that tends to make a fact of consequence more or less probable. Hawaii Rules of Evidence (HRE) Rule 401 (1993). Generally, "[a]11 relevant evidence is admissible[.]" HRE 402 (1993). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or ...