(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
(1996).
(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