NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
DISSENTING OPINION BY NAKAMURA, J.
Defendant-Appellant Alfred J. Roman (Roman) made a prima facie
showing that he was entitled to invoke the parental discipline defense
set forth in Hawaii
Revised Statutes (HRS) § 703-309(1) (1993). I therefore agree with
the majority that the family court clearly erred in not applying the
parental discipline defense in this case. I
disagree, however, with the majority's conclusion that this error was
harmless. In my view, the family court's failure to consider Roman's
asserted parental
discipline defense affected his substantial rights and was not harmless
error. I further conclude that the family court harmfully erred in
excluding evidence of
Roman's non-physical attempts to deal with previous incidents of
misconduct by Minor (the complaining witness). This evidence was
relevant, under the
parental discipline defense, to whether the force used by Roman in this
case was reasonably proportional to the misconduct being punished. See State v.
Crouser, 81 Hawai‘i 5, 12, 911 P.2d 725, 732 (1996); State v. Matavale, 115
Hawai'i 149, 164-65, 166 P.3d 322, 337-38 (2007).
I would
vacate Roman's conviction and remand for a new trial. I respectfully
dissent.