NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CR. NO. 10-1-0260)
On the briefs: Craig A. De Costa (Law Office of Craig A. De Costa) for Defendant-Appellant
Tracy Murakami Deputy Prosecuting Attorney County of Kauai for Plaintiff-Appellee
By: Nakamura, Chief Judge, and Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Rudy Rudolpho Yasay (Yasay) appeals from the Judgment filed on June 5, 2012, in the Circuit Court of the Fifth Circuit (Circuit Court). A jury found Yasay guilty of harassment (Count III) for an incident that took place on July 9, 2010; the included offense of attempted second-degree assault (Count IV) and abuse of a family or household member (Count V) for an incident that took place on August 18, 2010; and resisting arrest (Count VI) for an incident that took place on August 21, 2010. The complaining witness (CW) for Counts III, IV, and V was Yasay's girlfriend during the time of the charged offenses. The Circuit Court ruled that Count V merged with Count IV, and it sentenced Yasay to concurrent terms of 30 days of imprisonment on Count III, five years of imprisonment on Count IV, and one year of imprisonment on Count VI.
On appeal, Yasay only challenges his conviction on Count IV for the included offense of attempted second-degree assault. Yasay argues: (1) the Circuit Court erred in giving the jury an instruction on the included offense of attempted second-degree assault; (2) the Circuit Court erred in failing to instruct the jury on the specific conduct alleged to form the basis for the included offense of attempted second-degree assault; and (3) there was insufficient evidence to support his conviction for attempted second-degree assault. We affirm.
Yasay was charged in Count IV with committing second-degree assault by causing substantial bodily injury to the CW and/or by causing bodily injury to the CW with a dangerous instrument, in violation of Hawaii Revised Statutes (HRS) § 707-711(1)(a), (1)(b), and (1)(d). At trial, the CW testified that while at home, she and Yasay began arguing in the living room. Yasay was holding hedge clippers, which he was in the process of sharpening. Yasay went outside then came running back into the house. Yasay hit the CW on the head with the hedge clippers, then left the residence. The CW sustained a cut to her forehead, which began to bleed. A friend accompanied the CW to the emergency room, where the CW received ten stitches to close the wound.
Dr. Christopher Elliot, the emergency room doctor at Wilcox Hospital, testified that he treated the CW for a head laceration, which was 3.5 centimeters long, as well as bruises to her right foot. With respect to the head laceration, Dr. Elliot testified that the CW reported that she had been attacked with hedge clippers. Dr. Elliot used ten stitches to repair the laceration to the CW's forehead. He testified that he might have used fewer stitches if the laceration had been in a less cosmetically sensitive area, like an arm or leg. He also noted that using steri strips or Dermabond, which is like Super Glue, were alternative ways of closing a wound, but felt that stitches provided a better healing outcome given the size of the wound.
Yasay testified that the CW grabbed his shirt, when he told the CW that he wanted to take his things and leave. According to Yasay, as he struggled with the CW to get her to let go of his shirt, they fell to the living room floor. They continued to struggle on the floor, with Yasay trying to get the CW off of him. There were a number of metal objects on the floor because the house was being painted, and Yasay surmised that the CW must have cut her head on one of these objects. Yasay denied hitting the CW and denied having anything in his hands during the struggle.
We resolve Yasay's arguments on ...