NOT FOR PUBLICATION



NO. 25337



IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI`I





STATE OF HAWAI`I, Plaintiff-Appellee, v.
MERWIN GAINES, Defendant-Appellant




APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 01-1-0898)



SUMMARY DISPOSITION ORDER
(By: Burns, C.J., Watanabe and Foley, JJ.)

Defendant-Appellant Merwin Gaines (Gaines) appeals the Judgment filed on August 27, 2002 in the Circuit Court of the First Circuit (circuit court). (1)

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, we resolve Gaines's point of error as follows:

Gaines contends the circuit court erred by not instructing the jury on the included offense of Assault in the Third Degree. Assuming that the circuit court erred by not instructing the jury on the included offense of Assault in the Third Degree, it was harmless error because Gaines was convicted of Assault in the Second Degree. State v. Haanio, 94 Hawai`i 405, 415, 16 P.3d 246, 256 (2001).

Therefore,

IT IS HEREBY ORDERED that the Judgment filed on August 27, 2002 in the Circuit Court of the First Circuit is affirmed.

DATED: Honolulu, Hawai`i, April 13, 2004.


On the briefs:

Linda C.R. Jameson,
Deputy Public Defender,
for defendant-appellant.

Mark Yuen,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for plaintiff-appellee.



1.      The Honorable Sandra A. Simms presided.