*** NOT FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee,
K. KEKUEWA, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 03-1-0575)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Kekuewa's appeal as follows.
(1) The circuit court did not plainly err in instructing the jury regarding self-defense. "Ordinarily, instructions to which no objection was made at trial may not be raised as error on appeal." State v. Pinero, 75 Haw. 282, 290, 859 P.2d 1369, 1374 (1993); see Hawai`i Rules of Penal Procedure Rule 30(f) (2004). Kekuewa fails to cite any relevant case law in support of her contentions, nor does she explain how the circuit court's alleged errors contributed to her conviction. Inasmuch as Kekuewa "presents no discernable argument in support of th[ese] contention[s][,] . . . it is our prerogative to disregard this claim." State v. Bui, 104 Hawai`i 462, 464, 92 P.3d 471, 474 (2004) (quoting State v. Moore, 82 Hawai`i 202, 206, 921 P.2d 122, 126 (1996)) (some brackets added and some in original).
The circuit court correctly instructed the jury as to the use of "force" in addition to the use of "deadly force" in the self-defense instruction. Cf. State v. Van Dyke, 101 Hawai`i 377, 69 P.3d 88 (2003).
The circuit court's self-defense instruction was derived almost entirely from the Hawai`i Pattern Jury Instruction -- Criminal Instruction No. 7.01 on self-defense, which this court has deemed "fully consonant with the controlling statutory and case law of this state." State v. Augustin, 101 Hawai`i 127, 63 P.3d 1097 (2002).
"[W]hen read and considered as a whole," the circuit court's self-defense instruction was not "prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Aganon, 97 Hawai`i 299, 302, 36 P.3d 1269, 1272 (2001); Pinero, 75 Haw. at 296-97, 859 P.2d at 1376.
(2) The circuit court did not plainly err in defining or properly instructing the jury regarding what constitutes a "true threat." The "true threat" requirement is not limited to verbal conduct, and the circuit court's instruction complies with our jurisprudence. See State v. Martins, 106 Hawai`i 136, 102 P.3d 1034 (2004); State v. Valdivia, 95 Hawai`i 465, 24 P.3d 661 (2001); State v. Chung, 75 Haw. 398, 415-16, 862 P.2d 1063, 1072 (1993); United States v. Kelner, 534 F.2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022 (1976). The jury instruction regarding a "true threat" was not "prejudicially insufficient, erroneous, inconsistent, or misleading." Aganon, 97 Hawaii at 302, 36 P.3d at 1272; Pinero, 75 Haw. at 296-97, 859 P.2d at 1376.
(3) The circuit court did not err in denying Kekuewa's motion for judgment of acquittal. Upon viewing the evidence in the light most favorable to the prosecution, and "in full recognition of the province of the trier of fact, the evidence [wa]s sufficient to support a prima facie case so that a reasonable mind might fairly conclude guilt beyond a reasonable doubt." State v. Aplaca, 96 Hawai`i 17, 21, 25 P.3d 792, 796 (2001). Therefore,
IT IS HEREBY ORDERED that the judgment of the circuit court is affirmed.
DATED: Honolulu, Hawai`i,
On the briefs:
public defender, for