CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-13-0005595; CR. NO. 13-1-0635.
Shawn A. Luiz, for petitioner.
Loren J. Thomas, for respondent.
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS.
[136 Hawai'i 473] Sabrina S. McKenna, J.
Petitioner/Defendant-Appellant Jonathan Henley (" Henley" ) appeals from the ICA's judgment, which affirmed the Circuit Court of the First Circuit's (" circuit court" ) Judgment of Conviction and Sentence, which adjudged Henley guilty of Assault in the Third Degree, sentenced him to 30 days' imprisonment, and increased bail from $200.00 to $2,000.00 cash only pending execution of sentence. On certiorari, Henley asserts (1) that insufficient evidence supported his conviction; (2) that the circuit court abused its discretion in increasing his bail pending appeal; and (3) that the circuit court abused its discretion in sentencing him to jail for a first offense. Upon reviewing the record, we conclude (1) that the circuit court plainly erred in failing to instruct the jury on mutual affray; and (2) that the district court abused its discretion in increasing Henley's bail from $200.00 to $2,000.00 cash only pending appeal. We do not reach the issue of whether the circuit court abused its discretion in sentencing Henley to jail for a first offense. Because there was sufficient evidence for the conviction, this matter is remanded to the circuit court for further proceedings consistent with this opinion.
A. Proceedings in Circuit Court
1. Complaint and Jury Demand
Henley was charged by Complaint with " intentionally, knowingly, or recklessly caus[ing] bodily injury to Gary K. Massey, thereby committing the offense of Assault in the Third Degree, in violation of Section 707-712(1)(a) of the Hawaii Revised Statutes."  He was represented by court-appointed counsel. Henley demanded a jury trial and was bound over to the circuit court.
2. Jury Trial
A two-day jury trial took place. The State called two witnesses: the complaining witness,
[136 Hawai'i 474] Gary Massey (" Massey" ), and a police officer who responded to the scene of the alleged assault. Henley called one witness, his friend Kalanikapu Copp (" Copp" ), who was with him at the time of the alleged assault. Henley also testified in his own defense.
a. Testimony of Gary Massey
The complaining witness, Massey, testified that he was 68 years old and worked as a security officer for the Colony Surf Hotel on the evening of November 9, 2012. He arrived at 10:30 p.m. to relieve another security officer, who told him that there was a party in Room 205 that generated two noise complaints and reports of graffiti in the stairwell. The other security officer had called the Honolulu Police Department. When police officers arrived, they and Massey went to Room 205 and dispersed the party guests. The police officers left, and Massey went to the 19th floor and walked down the stairwell, as part of his normal duties. Around 12:30 a.m., he heard more party noise coming from Room 205 and called the police again. Together, they cleared the room once more.
Massey testified that an officer told him to escort two individuals off the property. Those individuals were Henley, who had a guitar strapped onto his back, and Copp, Henley's friend. As the two were descending the stairs, they called Massey a " fucking faggot haole" and told him to " go back to [his] gay country." According to Massey, as Copp exited the stairwell, Massey held the door open, and Henley head-butted Massey above the right eye, causing Massey to feel pain. Massey fell backwards and hit the ground, while Henley threw punches at him. When Massey was on the ground, Henley stood over him with a foot on either side of him; Massey then reached up and grabbed Henley's left testicle and squeezed it. Henley screamed and jumped off of Massey. At some point during this encounter, Massey was kicked or punched in the left ear.
Henley and Copp then ran into Kapiolani Park, and Massey alerted the police officers, who were still upstairs on the second floor, that he had been assaulted. The police officers drove through Kapiolani Park and located Henley and Copp. Massey then positively identified Henley as his assailant. On cross-examination, Massey admitted that Henley and Copp were voluntarily leaving the premises when Massey was following them, and that Massey could have remained behind them at a distance.
b. Testimony of Officer Nicholas Muna
The State also called Honolulu Police Department patrol officer, Nicholas Muna, who testified that he was called to Room 205 twice on the night of November 9, 2012 to disperse a loud party. After the second call, as he was talking to the renter of Room 205, he heard a yell for help coming from downstairs. He ran downstairs to find the security officer flagging him down and pointing towards Kapiolani Park, saying, " [T]hose two guys, they just attacked me." Officer Muna got into his patrol car and drove through the park. When two males ran out from behind a tree, Muna detained them.
Later, Muna spoke with Massey, who related that he escorted the two males off the property when they started arguing with him. The argument escalated, and Massey was punched and head-butted. Muna testified that Massey told him that after Massey fell onto his back, he was punched again in the left ear. Massey reported pain to his face, and Muna observed a small cut above Massey's left ear. On cross-examination, Muna testified that he would never direct Massey to escort people off the property because he would not want to be responsible if Massey were injured.
c. Testimony of Kalanikapu Copp
Henley called Copp, his classmate and friend of two or three years, to testify in his defense. Copp testified that, on the night in question, he and Henley were at the Colony Surf Hotel for a friend's birthday party. They were taking turns playing Henley's guitar at the party. The first time the party was dispersed, Massey and four or five police officers showed up. Copp stayed behind to use the bathroom, and Henley left the party. Copp testified that the police officers gave him permission to stay, and Copp called Henley to return to Room 205. Henley returned,
[136 Hawai'i 475] accompanied by a few other people. They were playing music on the speakers when Massey and the police officers returned and told Henley and Copp to leave.
Copp and Henley exited Room 205 and passed Massey, who had a " real smug look on his face." Henley told Massey, " I bet you feel real big right now just bossing us around," and Copp told Massey " F you." Copp's comment " kind of set [Massey] off," so Massey followed them as they were descending the stairwell and called them " hippies" and " faggots." Copp went through the doorway at the bottom of the stairs first. He turned back and saw Massey grab Henley " on the arm and . . . kind of jerk him forward." Henley then turned around and pushed Massey in the solar plexus. Massey fell. When he got up, he told Henley, " [Y]ou're going to get it now," and tried to tackle Henley. Massey tried to put Henley in an " arm bar or a choke." At this point, Copp punched Massey once, but Massey did not let Henley go, so Copp jabbed Massey three more times. Copp also saw Massey grab Henley's testicles. Massey let go of Henley but was still clinging onto Henley's shirt as Henley attempted to leave. Copp " karate chopped" Massey's hand, causing Massey to finally let go of Henley.
Copp and Henley then ran into Kapiolani Park. Massey continued to pursue them, so Copp gave Massey " a little push kick just right to his midsection[.]" Copp and Henley hid from Massey in a banyan tree and were ultimately discovered by the police. Copp testified that he did not see Henley head-butt Massey, although he did see Henley push Massey in the solar plexus. Copp testified that he was the one who punched Massey, probably causing the scratch to Massey's left ear.
d. Testimony of Jonathan Henley
Henley took the stand. He testified that he worked in telecommunications. According to Henley, he had just turned 19 on November 8, 2012, and he was at the Colony Surf Hotel to celebrate multiple birthdays, including his own. He had brought along his guitar that he constantly carries around with him. Henley stated that there was no alcohol at the get-together. He and Copp were planning on sleeping over. After arriving at the party, they " jammed" for at least two hours. The police and a security officer ended the party, and Henley left by himself. He saw the security officer arguing with a large group of people. Copp then called Henley and told him they had permission to return to Room 205 and stay the night. Henley returned with five others, and they played music on the stereo system before the police and security officer returned. The security officer accused Copp and Henley of " br[inging] the party back, . . . start[ing] up the music, . . . [and] hanging off the [lanai.]" Copp and Henley were directed to leave.
Copp and Massey started arguing, and Massey followed Copp and Henley out of the room and to the stairwell. Massey called Copp and Henley " faggots," " hippies," " punks," and " ignorant children," and Copp told Massey to " fuck off." Copp exited the door at the bottom of the stairs, and Henley was about to exit when Massey " grabbed [Henley] from the back but like on the upper arm." Henley " just react[ed]" and " shoved [Massey] away[.]" Massey let go but then tried to tackle Henley. Massey did not succeed, so he then " bailed towards the ground and grabbed [Henley's] balls." Copp saw what was happening, so he hit Massey a few times until Massey released Henley.
Copp and Henley were leaving the property when they heard Massey yelling for help. They ran towards a tree in order to talk and regroup. There they were apprehended by the police. Henley emphasized in his testimony that he did not head-butt or hit Massey, but that he did push Massey in the chest. After Henley's testimony, the defense rested.
3. Jury Instructions
The State requested a jury instruction based on the Hawai'i Standard Jury Instructions Criminal (" HAWJIC" ) 9.21 jury instruction on Assault in the Third Degree. The requested instruction stated the following:
In the Complaint, the Defendant, Jonathan Henley, is charged with the offense of ...