NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 09-1-0843)
Karen T. Nakasone Summer M.M. Kupau Deputy Public Defender Office of the Public Defender for Defendant-Appellant
Stephen K. Tsushima Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee
Nakamura, C.J., Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Christopher Laboy (Laboy) appeals from the Judgment-of Conviction and Probation Sentence filed on February 23, 2011, in the Circuit Court of the First Circuit (circuit court). Judgment was entered against Laboy for Assault in the Second Degree, in violation of Hawaii Revised Statutes (HRS) § 707-711 (Supp. 2012).
The case .arises from an incident in which Laboy's father, Clifford Laboy (Father), and Complaining Witness Sunil Joseph (CW Joseph) were playing basketball on opposing teams and got into an altercation. Laboy, who was watching the game from the stands, became involved and ultimately struck CW Joseph.
On appeal, Laboy contends that the circuit court erred by: (1) admitting testimony regarding CW Joseph's nonviolent character; (2) denying Laboy's requested instruction on the lesser included offense of Assault in the Third Degree; (3) including the phrase "immediately necessary" intervention rather than "necessary" intervention in the defense-of-others instruction; and (4) failing to instruct the jury on a mistake- s of-fact defense. Laboy further contends that, if the above alleged errors do not individually entitle him to a new trial, the cumulative effect of all of the individual errors deprived Laboy of his due process right to a fair trial.
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 affirm and resolve Laboy's points of error as set forth below.
I. Admission of Character Evidence
Laboy alleges that the circuit court violated Hawaii Rules of Evidence (HRE) 404(a)(2) (Supp. 2012) by admitting testimony by Jonathan Tanibe (Tanibe) regarding CW Joseph's nonviolent character. Tanibe testified that, during the confrontation between Father and CW Joseph, he jumped in front of Father so the situation would not escalate. He did not jump in front of CW Joseph because "[k]nowing [CW Joseph] in my past, he's not a fighter." The circuit court overruled Defense counsel's general objection to this testimony.
"Evidentiary rulings are reviewed for abuse of discretion, unless application of the rule admits of only one correct result, in which case review is under the right/wrong standard." State v. Ortiz, 91 Hawai'i 181, 189, 981 P.2d.1127, ' 1135 (1999) (citation and internal quotation marks omitted).
Laboy did not specifically object on HRE Rule 404(a) grounds and therefore failed to preserve his claim for appeal. See HRE Rule 103(a)(1) (Supp. 2012) (providing that to preserve a claim of error over the admission of evidence, a party must "stat[e] the specific ground of objection, if the specific ground was not apparent from the context[.]"). Even assuming arguendo that Laboy preserved his HRE Rule 404(a) claim for appeal, the character evidence at issue does not fall under HRE Rule 404(a) because the evidence was not used "for the purpose of proving action in conformity therewith[.]" Rather, Tanibe's testimony was relevant to explain why he decided to jump in front of Father as opposed to CW Joseph. Tanibe's testimony is thus not precluded by HRE Rule 404.
In addition, we cannot say that the circuit court abused its discretion in determining that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice. As noted, Tanibe's testimony was offered for a non-propensity purpose. Furthermore, during the cross-examination of CW Joseph, Laboy asked, "You got into fights before playing basketball?" and CW Joseph responded, "Never in my life have I ever been into one fight." Given the non-propensity purpose for which Tanibe's testimony was offered ...