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NO. CAAP-19-0000540

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

MARK CHAR, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1PC161001291)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

Defendant-Appellant Mark Char (Char) appeals from the

Judgment of Conviction and Sentence (Judgment), entered on

July 1, 2019, in the Circuit Court of the First Circuit (Circuit

Court).1/ After a jury trial, Char was convicted of: (1)

Attempted Murder in the Second Degree, in violation of Hawaii

Revised Statutes (HRS) §§ 705-500,2/ 707-701.5,3/ and 706-656;4/

1/ The Honorable Todd W. Eddins presided.

2/ HRS § 705-500 (2014) provides:

Criminal Attempt. (1) A person is guilty of an

attempt to commit a crime if the person:

(a) Intentionally engages in conduct which would

constitute the crime if the attendant

circumstances were as the person believes them

to be; or

(b) Intentionally engages in conduct which, under

the circumstances as the person believes them to

be, constitutes a substantial step in a course

of conduct intended to culminate in the person's

commission of the crime.

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(2) Assault in the Second Degree, in violation of HRS

§§ 707-711(1)(a) and/or 707-711(1)(b);5/ and (3) Assault in the

Third Degree, in violation of HRS §§ 707-712(1)(a) and/or

707-712(1)(b).6/

2/ ...continue

(2) When causing a particular result is an element of

the crime, a person is guilty of an attempt to commit the

crime if, acting with the state of mind required to

establish liability with respect to the attendant

circumstances specified in the definition of the crime, the

person intentionally engages in conduct which is a

substantial step in a course of conduct intended or known to

cause such a result.

(3) Conduct shall not be considered a substantial step

under this section unless it is strongly corroborative of

the defendant's criminal intent.

3/ HRS § 707-701.5 (2014) provides:

Murder in the second degree. (1) Except as provided

in section 707-701, a person commits the offense of murder

in the second degree if the person intentionally or

knowingly causes the death of another person.

(2) Murder in the second degree is a felony for which

the defendant shall be sentenced to imprisonment as provided

in section 706-656.

4/ HRS § 707-656 (2014) states, in relevant part:

Terms of imprisonment for first and second degree

murder and attempted first and second degree murder. . . .

. . . .

(2) Except as provided in section 706-657, pertaining

to enhanced sentence for second degree murder, persons

convicted of second degree murder and attempted second

degree murder shall be sentenced to life imprisonment with

possibility of parole.

5/ HRS § 707-711 (2014) states, in relevant part:

(1) A person commits the offense of assault in the

second degree if:

(a) The person intentionally or knowingly causes

substantial bodily injury to another;

(b) The person recklessly causes serious or

substantial bodily injury to another[.]

6/ HRS § 707-712 (2014) states, in relevant part:

(1) A person commits the offense of assault in the

third degree if the person:

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On appeal, Char contends that: (1) the Circuit Court's 

jury instruction on the presumption of innocence and reasonable

doubt, presented in lieu of Hawai#i Pattern Jury Instructions

Criminal (HAWJIC) 3.02, "was prejudicially insufficient, thus

denying Char his constitutional rights to due process and a fair

trial"; and (2) the State committed prosecutorial misconduct

during its rebuttal closing argument when the Deputy Prosecuting

Attorney (DPA) posed questions that "clearly and improperly

appealed to the jury's sympathy."

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we affirm the

Judgment for the reasons set forth below. 

I. Background

On August 1, 2016, Char was involved in a physical

altercation along the H-1 freeway following a traffic incident. 

He was charged with Attempted Murder in the Second Degree as to

Complainant Jesther Marlang (Marlang), Assault in the Second

Degree as to Complainant Deion Anunciacion (Anunciacion), and

Assault in the Third Degree as to Complainant Jene Winn (Winn). 

At trial, the State alleged that during the altercation, Char: 

(1) stabbed Marlang five times, to his abdomen and the side of

his body, and sliced the back of Marlang's neck and forearm; (2)

stabbed one and sliced the other of Anunciacion's forearms; and

(3) sliced two of Winn's fingers. Char claimed he was defending

himself against two younger men, Marlang and Anunciacion, who

were attacking him. 

On March 1, 2019, the jury found Char guilty as charged

on all three counts. This appeal followed.

6/ ...continue

(a) Intentionally, knowingly, or recklessly causes

bodily injury to another person; or

(b) Negligently causes bodily injury to another

person with a dangerous instrument.

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II. Discussion

A. Jury Instruction

Char argues that the Circuit Court erred in

substituting its own jury instruction on the presumption of

innocence and reasonable doubt for HAWJIC 3.02. 

HAWJIC 3.02 states:

3.02 PRESUMPTION OF INNOCENCE; REASONABLE DOUBT

You must presume the defendant is innocent of the

charge against him/her. This presumption remains with the

defendant throughout the trial of the case, unless and until

the prosecution proves the defendant guilty beyond a

reasonable doubt. 

The presumption of innocence is not a mere slogan but

an essential part of the law that is binding upon you. It

places upon the prosecution the duty of proving every

material element of the offense charged against the

defendant beyond a reasonable doubt. 

You must not find the defendant guilty upon mere

suspicion or upon evidence which only shows that the

defendant is probably guilty. What the law requires before

the defendant can be found guilty is not suspicion, not

probabilities, but proof of the defendant's guilt beyond a

reasonable doubt. 

What is a reasonable doubt?

It is a doubt in your mind about the defendant's guilt

which arises from the evidence presented or from the lack of

evidence and which is based upon reason and common sense. 

Each of you must decide, individually, whether there

is or is not such a doubt in your mind after careful and

impartial consideration of the evidence. 

Be mindful, however, that a doubt which has no basis

in the evidence presented, or the lack of evidence, or

reasonable inferences therefrom, or a doubt which is based

upon imagination, suspicion or mere speculation or guesswork

is not a reasonable doubt. 

What is proof beyond a reasonable doubt?

If, after consideration of the evidence and the law,

you have a reasonable doubt of the defendant's guilt, then

the prosecution has not proved the defendant's guilt beyond

a reasonable doubt and it is your duty to find the defendant

not guilty. 

If, after consideration of the evidence and the law,

you do not have a reasonable doubt of the defendant's guilt,

then the prosecution has proved the defendant's guilt beyond

a reasonable doubt and it is your duty to find the defendant

guilty. 

In lieu of HAWJIC 3.02, the Circuit Court instructed

the jury as follows: 

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It is a cardinal principle of our system of justice

that a person accused of a crime is presumed not to have

committed the crime. Mark Char is presumed innocent unless

you conclude that his guilt has been established beyond a

reasonable doubt.

The presumption of innocence requires the prosecution

to prove every element of the offenses charged against Mark

Char beyond a reasonable doubt. He does not have to prove

anything.

The phrase reasonable doubt does not have a technical

or complicated meaning. A reasonable doubt is exactly what

it is -- a doubt that is reasonable. You must use your

common sense and the rational faculties and logical

processes of your mind to determine whether you have a doubt

that is reasonable. Be mindful that not all doubts are

reasonable doubts. A doubt based upon imagination, or mere

speculation or guesswork is not a reasonable doubt.

A reasonable doubt is a doubt based on your reason and

common sense. It arises from the evidence, or a lack of

evidence, or the reasonable inferences that emerge. Through

reason you must decide whether your mind is free or not free

of a reasonable doubt.

Proof beyond a reasonable doubt is a very high

standard for the prosecution to satisfy. However, the

prosecution's heavy burden does not mean it must prove the

elements of a crime beyond all possible doubt or to an

absolute certainty. You must not base your decision on the

proposition that anything is possible or nothing is certain.

If, after fair and impartial consideration of all the

evidence and the law, you do not have a reasonable doubt of

Mark Char's guilt, then the prosecution has proved his guilt

beyond a reasonable doubt and it is your duty to find Mark

Char guilty.

On the other hand, if, after fair and impartial

consideration of all the evidence and the law, you have a

reasonable doubt of Mark Char's guilt, then the prosecution

has not proved his guilt beyond a reasonable doubt and it is

your duty to find Mark Char not guilty.

Char first contends that the Circuit Court's

instruction was prejudicially deficient because it omitted the

following statement contained in HAWJIC 3.02: "The presumption

of innocence is not a mere slogan but an essential part of the

law that is binding upon you." Char argues that this statement

"highlights that the presumption of innocence is not a phrase to

be taken lightly and/or ignored" and was thus "an essential

precept that should have been provided to the jury." 

The United States Supreme Court has explained that "the

Constitution does not require that any particular form of words

be used in advising the jury of the government's burden of

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proof[,]" so long as "taken as a whole, the instructions . . .

correctly convey the concept of reasonable doubt to the jury." 

Victor v. Nebraska, 511 U.S. 1, 5 (1994) (brackets omitted)

(quoting Holland v. United States, 348 U.S. 121, 140 (1954)). 

Likewise, the Hawai#i Supreme Court has stated: "It is well

settled that jury instructions are to be viewed as a whole." 

State v. Sawyer, 88 Hawai#i 325, 335, 966 P.2d 637, 647 (1998)

(citing State v. Cullen, 86 Hawai#i 1, 8, 946 P.2d 955, 962

(1997)). The court also has made clear that "the duty to

properly instruct the jury lies with the trial court," State v.

Nichols, 111 Hawai#i 327, 335, 141 P.3d 974, 982 (2006), and

deviation from HAWJIC "does not automatically result in

incomplete and confusing jury instructions." Sawyer, 88 Hawai#i

at 335, 966 P.2d at 647 (rejecting the defendant's argument that

"deviation from HAWJIC is prejudicial per se" and noting "[t]he

introduction to the instructions clearly states that 'nothing

herein shall be construed as an approval by the Supreme Court of

the State of Hawai#i of the substance of any of said

instructions.'" (brackets omitted) (quoting HAWJIC (1991))). 

Here, the Circuit Court explained its use of

alternative instructions in lieu of HAWJIC, as follows: 

I have modified or revised the Hawaii standard jury

instructions. In my view a lot of the standard jury

instructions are stale. They are unhelpful phrases,

misleading comparisons. There's a lack of consolidation,

there's redundancy. So I have attempted to craft jury

instructions that are more easily understandable to the jury

that will better aid the jury in their understanding of the

law.

Viewing the Circuit Court's instructions as a whole, we

conclude that they correctly conveyed the concepts of the

presumption of innocence and reasonable doubt, and sufficiently

conveyed the importance of these concepts. See Sawyer, 88

Hawai#i at 335, 966 P.2d at 647. For example, the instruction at

issue included the following language: "It is a cardinal

principle of our system of justice that a person accused of a

crime is presumed not to have committed the crime. Mark Char is

presumed innocent unless you conclude that his guilt has been

established beyond a reasonable doubt." Additionally, the court

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instructed the jurors: "The presumption of innocence requires

the prosecution to prove every element of the offenses charged

against Mark Char beyond a reasonable doubt. He does not have to

prove anything." Likewise, the court instructed: "Proof beyond

a reasonable doubt is a very high standard for the prosecution to

satisfy." Viewed as a whole, the court's instructions were not

"prejudicially insufficient, erroneous, inconsistent, or

misleading." State v. Matuu, 144 Hawai#i 510, 516, 445 P.3d 91,

97 (2019) (quoting State v. Kassebeer, 118 Hawai#i 493, 504, 193

P.3d 409, 420 (2008)).

Char next contends that the challenged instruction was

misleading because, in its last two sentences, the "'guilty'

instruction comes before the 'not guilty' instruction." Char

notes that in contrast, HAWJIC 3.2 "gives the 'not guilty"

instruction before the 'guilty instruction.'" Char argues that

by "[p]lacing the 'guilty' instruction first," the challenged

instruction is "subliminally misleading and leans towards the

presumption of guilt and not the presumption of innocence."

Char does not cite any Hawai#i authority to support his

argument, and we have found none. We note, however, that a

number of courts in other jurisdictions have rejected similar

claims regarding the order in which "guilty" and "not guilty"

have appeared on verdict forms. See, e.g., Rowland v. State, 829

S.E.2d 81, 89 (Ga. 2019) ("Nor did the order in which 'guilty'

and 'not guilty' were listed on the verdict form, when viewed in

light of the rest of the court's instructions, mislead the

jury."); Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 888

Pa. Super.), appeal denied, 221 A.3d 644 (Pa. 2019) (concluding

that a verdict slip that listed "Guilty" before "Not Guilty" "did

not infringe upon the [defendant's] right of presumed innocence"

and, thus, "no Due Process violation occurred, and no appellate

relief is due"); State v. Hayes, 462 P.3d 1195, 1207 (Kan. Ct.

App. 2020) ("The district court did not err by placing the guilty

option above the not guilty option in the verdict form given to

the jury."). 

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Here, after fully explaining the presumption of

innocence and the concept of reasonable doubt, the Circuit Court

articulated the circumstances under which the jury had a duty to

find Char "guilty," and those under which it had a duty to find

him "not guilty." Viewing the instructions as a whole, we

conclude that the order of the last two sentences of the

challenged instruction was not "prejudicially insufficient,

erroneous, inconsistent, or misleading," Matuu, 144 Hawai#i at

519, 445 P.3d at 100; nor did the instructions result in "a

reasonable possibility that error might have contributed to

conviction." State v. Pond, 118 Hawai#i 452, 462, 193 P.3d 368,

378 (2008). 

B. Prosecutorial Misconduct

At trial, toward the end of the State's rebuttal

argument, the DPA stated: 

You also know it's not self defense because Judy Char

does not get out of the red Camaro. What spouse, if they're

seeing their spouse or loved one being beaten by two men,

isn't going to get out and try to do something? Get out and

plead with the attackers to stop, honk the horn, get out,

try to flag by some motorists, flag down some motorists.

Or how about she just pulls her cell phone out and

calls 911, because the defendant said she had a cell phone

to call 911. That makes absolutely no sense, that he's being

so -- he's beaten so badly that he's got to pull out a knife

and maim these men, but she doesn't call 911. It makes

absolutely no sense. 

There's two types of people in this case. You have

those folks who did nothing. Judy Char. You have other folks

who did something. You have a nurse practitioner who bare

handed plugged Jesther's hole where his kidney had been

sliced off. You had a military man take off his uniform and

wrap it around Jesther's injury. You have Kaohu Detwiler

trying to desperately keep Jesther from bleeding out on the

freeway. Those are the two types of people involved in this

case. 

And so, you know, when I'm hearing -- and when I'm

sitting there and I'm listening to defense counsel trying to

think, you know, what -- what can I say to these people?

What is going to be the most persuasive thing I can say? For

Jesther and Deion, what can I say for these boys? 

And then, you know what, I think I realize that

there's nothing I really can say, because what I have done

in the time we've spent together is I've tried to recreate

exactly what happened on August 1st, 2016 for you folks, in

this courtroom, with 14 witnesses.

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So there's only really two questions left. Are you

going to stop and help these boys? Or are you going to just

pass on by? 

Thank you.

Char contends that the questions, "Are you going to

stop and help these boys? Or are you going to just pass on by?"

constituted prosecutorial misconduct. He argues that these

questions "appealed to the sympathy of the jury" and constituted

"a request for them to use their conscience." 

When a defendant alleges prosecutorial misconduct, we

decide: "(1) whether the conduct was improper; (2) if the

conduct was improper, whether the misconduct was harmless beyond

a reasonable doubt; and (3) if the misconduct was not harmless,

whether the misconduct was so egregious as to bar reprosecution." 

State v. Udo, 145 Hawai#i 519, 534-35, 454 P.3d 460, 475-76

(2019) (citing State v. Maluia, 107 Hawai#i 20, 25-26, 108 P.3d

974, 979-80 (2005)); see State v. Tuua, 125 Hawai#i 10, 14, 250

P.3d 273, 277 (2011) ("This court evaluates claims of improper

statements by prosecutors by first determining whether the

statements are improper, and then determining whether the

misconduct is harmless." (citing State v. Kiakona, 110 Hawai#i

450, 458, 134 P.3d 616, 624 (App. 2006)). Similarly, because

Char did not object to the alleged misconduct during trial, "we

must determine whether the prosecutor's comment[s] [were]

improper and, if so, whether such misconduct constituted plain

error that affected [Char's] substantial rights." State v.

Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996) (citing

State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986));

see State v. Wakisaka, 102 Hawai#i 504, 513, 78 P.3d 317, 326

(2003); HRPP Rule 52(b).

In evaluating whether a prosecutor's conduct was

proper, we consider "the nature of the challenged conduct in

relation to our criminal justice system generally and the special

role of the prosecutor specifically." Udo, 145 Hawai#i at 535,

454 P.3d at 476 (quoting State v. Underwood, 142 Hawai#i 317,

325, 418 P.3d 658, 666 (2018)). The supreme court has stated:

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[A] prosecutor, during closing argument, is permitted to

draw reasonable inferences from the evidence and wide

latitude is allowed in discussing the evidence. It is also

within the bounds of legitimate argument for prosecutors to

state, discuss, and comment on the evidence as well as to

draw all reasonable inferences from the evidence.

Clark, 83 Hawai#i at 304, 926 P.2d at 209 (citations omitted). 

In determining whether a prosecutor's statements during closing

were improper, we look at the statements in context, considering

the argument in its entirety. See State v. Mars, 116 Hawai#i

125, 142, 170 P.3d 861, 878 (App. 2007); see also State v. Bruce,

141 Hawai#i 397, 407-08 411 P.3d 300, 310-11 (2017)(concluding

that, while viewed in a vacuum, the prosecutor's comments during

closing argument could be viewed as improper, considered in

context, the comments were not improper "because they did not

detract from the main point of the otherwise meritorious

argument" based on the evidence); State v. Pasene, 144 Hawai#i

339, 369, 439 P.3d 864, 894 (2019) ("in context, the DPA's

statements entreated the jury to use their life experiences to

judge the credibility of the witness' testimony, rather than

asking the jury to put themselves in the witnesses' position").

Here, viewed in isolation, the questions at issue can

be construed as an appeal to the jury's sympathy. The questions,

however, were not posed in isolation. Immediately prior to

raising the questions, the State argued against Char's

self-defense claim by highlighting the alleged inconsistencies

between his testimony and his wife's alleged actions during the

incident, and by contrasting those actions with those of the

witnesses who stopped to render aid or who contacted the police. 

The State also referenced its attempt to recreate the incident

for the jury through its fourteen witnesses. It was in this

context that the State then posed the two questions at issue. 

Considering the argument in its entirety, we conclude that these

questions were not a bald request for sympathy, but, rather, a

rhetorical device to urge the jury to reject Char's self-defense

claim and to return a guilty verdict based on the evidence

presented at trial. In sum, the two questions at issue did not

rise to the level of misconduct. See Bruce, 141 Hawai#i at 408

411 P.3d at 311. 

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Having reached this conclusion, we need not determine

whether the alleged misconduct was harmless beyond a reasonable

doubt or so egregious as to bar reprosecution. See State v.

Mara, 98 Hawai#i 1, 16, 41 P.3d 157, 172 (2002); State v. Roqan,

91 Hawai#i 405, 423, 984 P.2d 1231, 1249 (1999). For the same

reason, we do not reach the issue of plain error. See Clark, 83

Hawai#i at 305, 926 P.2d at 210. 

III. Conclusion

For these reasons, we affirm the Judgment of Conviction

and Sentence, entered on July 1, 2019, in the Circuit Court of

the First Circuit.

DATED: Honolulu, Hawai#i, November 30, 2020.

On the briefs:

Harrison L. Kiehm

for Defendant-Appellant.

Chad M. Kumagai,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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