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NO. CAAP-23-0000430 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAIʻI 

STATE OF HAWAIʻI, Plaintiff-Appellee, v. 

CHARLES KOUTSOUBINAS, Defendant-Appellant. 

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT 

(CASE NO. 2CPC-19-0000575)

SUMMARY DISPOSITION ORDER

(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.) 

Defendant-Appellant Charles Koutsoubinas appeals from 

the Circuit Court of the Second Circuit's June 9, 2023 Judgment1

convicting him of Assault in the First Degree, in violation of 

Hawai‘i Revised Statutes (HRS) § 707-710 (2014). Koutsoubinas 

also appeals from the circuit court's July 18, 2023 "Order 

Denying Defendant's Motion for Mistrial" (Order Denying Motion 

for Mistrial).2

1 The Honorable Christopher M. Dunn presided. 

2 The Honorable Michelle L. Drewyer presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-23-0000430

23-AUG-2024

08:19 AM

Dkt. 126 SO
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On appeal, Koutsoubinas raises nine points of error,3

however, his challenge to the jury instruction is dispositive. 

The challenged instruction provided an additional means for the 

State to disprove justification not provided in the statute. 

Thus, the jury instruction was wrong, and there was a reasonable 

possibility this error may have contributed to Koutsoubinas' 

conviction. 

Upon careful review of the record and the briefs 

submitted by the parties and having given due consideration to 

the issues raised and the arguments advanced, we resolve this 

appeal as discussed below, and vacate and remand for further 

proceedings. 

Relying on In re DM, 152 Hawai‘i 469, 526 P.3d 446 

(2023), Koutsoubinas contends the instruction on deadly force 

wrongly included the word "immediately."4 In a conclusory 

fashion, Koutsoubinas claims he was prejudiced. 

3 Koutsoubinas raises the following nine points of error: (1) the 

judgment wrongly reflects Assault in the First Degree; (2) the State secretly 

destroyed exculpatory evidence; (3) the State secretly placed a prosecutor's 

spouse on the jury; (4) the instruction on self-defense was misleading and 

prejudicial; (5) his right to confrontation was violated; (6) a defense 

witness was improperly attacked for asserting her right to remain silent; 

(7) the circuit court clearly erred in denying his proposed findings of fact; 

(8) the circuit court erred in denying his proposed conclusions of law; and 

(9) the State committed prosecutorial misconduct during closing arguments.

Koutsoubinas correctly asserts that the judgment wrongly reflects 

Assault in the First Degree when he was found guilty of Assault in the Second 

Degree. This is a clerical error that should be rectified. But, based on 

our decision today, we need not address the remaining points of error. 

4

 Koutsoubinas raises no point of error as to the instruction on

defense of others.
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The trial court is ultimately responsible for properly 

instructing the jury. State v. Nichols, 111 Hawai‘i 327, 335, 

141 P.3d 974, 982 (2006). "When jury instructions or the 

omission thereof are at issue on appeal, the standard of review 

is whether, when read and considered as a whole, the 

instructions given are prejudicially insufficient, erroneous, 

inconsistent, or misleading." State v. Metcalfe, 129 Hawai‘i 

206, 222, 297 P.3d 1062, 1078 (2013) (citation omitted). 

"Erroneous instructions are presumptively harmful and are a 

ground for reversal unless it affirmatively appears from the 

record as a whole that the error was not prejudicial." Id. 

(citation omitted). 

"[T]he real question becomes whether there is a 

reasonable possibility that error might have contributed to 

[the] conviction." Nichols, 111 Hawai‘i at 334, 141 P.3d at 981 

(citation omitted). "[O]nce instructional error is 

demonstrated, we will vacate, without regard to whether timely 

objection was made, if there is a reasonable possibility that 

the error contributed to the defendant's conviction." Id. at 

337, 141 P.3d at 984. 

For self-defense, "[t]he use of deadly force is 

justifiable . . . if the actor believes that deadly force is 

necessary to protect himself against death, serious bodily 

injury, kidnapping, rape, or forcible sodomy." HRS § 703-304(2) 
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(2014). Recently, the Hawai‘i Supreme Court noted that the 

Hawai‘i Standard Jury Instructions (HAWJIC) 7.01A misstates HRS 

§ 703-304(2) by inserting "immediately" before "necessary." DM, 

152 Hawai‘i at 477 n.13, 526 P.3d at 454 n.13. 

In this case, the jury instruction for self-defense 

tracked HAWJIC and included "immediately" before "necessary": 

The use of deadly force upon or toward another person 

is justified if the defendant reasonably believes that 

deadly force is immediately necessary to protect himself on 

the present occasion against death, serious bodily injury, 

kidnapping, rape, and/or forcible sodomy. The 

reasonableness of the defendant's belief that the use of 

protective deadly force was immediately necessary shall be 

determined from the viewpoint of a reasonable person in the 

defendant's position under the circumstances of which the 

defendant was aware or as the defendant reasonably believed 

them to be when the deadly force was used.

(Emphases added.)

Because the jury instruction in this case required 

that the use of deadly force be "immediately necessary" as 

opposed to "necessary," the instruction did not accurately 

reflect the law. Thus, the instruction was wrong and 

presumptively harmful. 

We must now determine whether there was a reasonable 

possibility this error may have contributed to Koutsoubinas' 

conviction. 

For Assault in the Second Degree, the State had to 

prove beyond a reasonable doubt that Koutsoubinas intentionally, 
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knowingly, or recklessly caused substantial bodily injury, or 

that he recklessly caused bodily injury, to the complaining 

witness (CW). HRS § 707-711(1)(a) and (1)(b) (Supp. 2018). And 

the State would also have to disprove justification. HRS § 702-

205 cmt. (2014); HRS § 703-304(2).

Based on the evidence in the record, Koutsoubinas'

conviction of Assault in the Second Degree appears to depend on

whether his use of deadly force was justified. Koutsoubinas 

testified he saw CW grab his girlfriend between the legs, slam 

her to the ground, and run straight towards him.

During closing arguments, the State reiterated to the 

jury that the instruction required "reasonableness of the 

defendant's belief that the use of deadly force was immediately 

necessary shall be determined from the viewpoint of a reasonable 

person . . . ." The State then argued "a reasonable person in 

Mr. Koutsoubinas' position would not reasonably believe that 

deadly force was necessary" and the force used in this case "was 

deadly and it was also excessive and not justifiable under the 

circumstances as they existed . . . . "

Because the circuit court instructed the jury that the 

reasonableness of Koutsoubinas' "belief that the use of deadly 

force was immediately necessary shall be determined from the
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viewpoint of a reasonable person," the State could disprove 

Koutsoubinas' justification defense by showing a lack of 

immediacy. See State v. Best, 150 Hawai‘i 401, 502 P.3d 1024, 

No. CAAP-17-0000833, 2022 WL 202570 at *4 (App. Jan. 24, 2022) 

(SDO). 

However, as the Hawai‘i Supreme Court noted, the plain 

language of HRS § 703-304(2) does not require immediacy when 

using deadly force. See DM, 152 Hawai‘i at 477 n.13, 526 P.3d at 

454 n.13. In other words, the jury instruction provided the 

State an additional way to disprove justification not afforded 

in HRS § 703-304(2). 

The jury convicted Koutsoubinas of Assault in the 

Second Degree despite his testimony indicating he saw CW throw 

Koutsoubinas' girlfriend to the ground and then run towards him. 

One reasonable inference is that the jury did not find 

Koutsoubinas' testimony credible as to the reason he believed 

the use of deadly force was immediately necessary. We cannot 

say that absent the erroneous instruction, the jury would have 

still found Koutsoubinas was not justified in using deadly 

force. Thus, there was a reasonable possibility the erroneous 

instruction may have contributed to Koutsoubinas' conviction. 

Based on the foregoing, we vacate the circuit court's 

June 9, 2023 Judgment and July 18, 2023 Order Denying Motion for 
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Mistrial, and remand this case to the circuit court for further 

proceedings consistent with the summary disposition order.

DATED: Honolulu, Hawai‘i, August 23, 2024.

On the briefs:

Gerald T. Johnson,

for Defendant-Appellant.

Lucas C. Burns,

Deputy Prosecuting Attorney,

County of Hawai‘i,

for Plaintiff-Appellee.

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge