NO. 25237


STATE OF HAWAI‘I, Plaintiff-Appellee,
MARK DUERING, Defendant-Appellant.

(CR. NO. 96-0220)

(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.,
and Circuit Judge Nakamura, in place of Acoba, J., recused)

The motion for reconsideration filed on January 3, 2005
by the defendant-appellant Mark Duering, requesting that this court review its summary disposition order (SDO) filed on
December 22, 2004, is hereby granted.

The SDO of this court filed on December 22, 2004 is
hereby amended as follows (deleted material is bracketed and new material is double underscored):

Line 7 from the bottom of page 2:

(2)     the circuit court’s [did not err in
instructing the jury because]:

(a)     [the circuit court correctly omitted]
         omission of instructions for a
         justification defense was correct
         because affirmative defenses were not
         necessary to exclude situations where
         HRS § 710-1071 (1993) infringed on
         constitutionally protected speech
         because as stated supra, HRS § 710-1071
         is not unconstitutionally overbroad.
         Therefore, an affirmative defense  
         instruction is unnecessary;

(b)     inclusion of tampering with a witness
         pursuant to HRS § 710-1072 [is] as a
         lesser included offense of intimidating
         a witness pursuant to HRS § 710-1071 was
         erroneous. HRS § 701-109(4)(a) and c
         (1993). Pursuant to HRS § 701-
         109(4)(a), “an offense is included if it
         is impossible to commit the greater
         without also committing the lesser.”
         [See also] State v. Friedman, 93 Hawai‘i
         63, 72, 996 P.2d 268, 277 (2000)(quoting
         State v. Burdett, 70 Haw. 85, 87-88, 762
         P.2d 164, 166 (1988). It is possible to
         commit the greater offense of
         intimidating a witness without
         committing the lesser offense of
         tampering with a witness. For example,
         a person commits the offense of
         intimidating a witness when a person
         uses a threat or force to influence a
         witness to testify truthfully, but such
         conduct does not constitute the offense
         of tampering with a witness. Pursuant
         to HRS § 701-109(4)(c), tampering with a
         witness is not a lesser included offense
                   of intimidating a witness because it
                   requires the same state of mind and has
                   a greater risk of injury. See State v.
         Kinnane, 79 Hawai‘i 46, 55, 897 P.2d
         973, 983 (1995). The error of including
         tampering with a witness as a lesser
         included offense was not harmless beyond
         a reasonable doubt because there is a
         reasonable possibility that the error
         contributed to Duering’s conviction;
         therefore Duering’s conviction must be  
         set aside. See State v. Arceo, 84
         Hawai‘i 1, 11-12, 928 P.2d 843, 853-54

(c)    [the] omission of the definition of
        “testimony” was not erroneous because the
        word has a commonplace meaning. See State v.
        Faria, 100 Hawai‘i 383, 389, 60 P.3d 333, 339
        (2002); and

(d)    substitution of the word “evidence” for
        the word “testimony” on the verdict form
        was error but was harmless because there
        was no evidence (other than Coulibaly’s
        testimony) which could have been
        withheld; therefore, there was no
        reasonable possibility that the error
        might have contributed to Duering’s
        conviction. See [State v. ]Arceo, 84
        Hawai‘i [1,] at 11-12, 928 P.2d [843,]
        at 853-54 [(1996)]; and

Line 3 from the top of page 5:

IT IS HEREBY ORDERED that the circuit court’s
final judgment filed June 17, 2002 is [affirmed]

An amended SDO is being filed concurrently with this order, incorporating the foregoing amendments. The Clerk of the Court is directed to provide a copy of this order and a copy of  the amended SDO to the parties. The Clerk of the Court is further instructed to distribute copies of this order of amendment to those who received the previously filed SDO.

DATED: Honolulu, Hawai‘i, February 3, 2005.

Robert G. Klein

and Philip Miyoshi
for defendant-appellant
on the motion