NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

CAAP NO 19-0000864

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

PAULA SIAOSI NGALU, JR., also known as 

SIAOSI NGALU, JR., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CPC-18-0000149)

MEMORANDUM OPINION

(By: Leonard and Nakasone, JJ. with Ginoza, 

Chief Judge, concurring and dissenting separately)

Defendant-Appellant Paula Siaosi Ngalu, Jr. (Ngalu)

appeals from the Circuit Court of the Second Circuit's (Circuit

Court) Amended Judgment; Conviction and Sentence (Judgment) filed

on November 20, 2019.1 Following a jury trial on Assault in the

First Degree (Assault First), Ngalu was convicted of the included

offense of Assault in the Second Degree (Assault Second) under

Hawaii Revised Statutes (HRS) § 707-711 (Supp. 2017)2 and

sentenced to a five-year term of imprisonment. 

1 The Honorable Rhonda I.L. Loo presided.

2 HRS § 707-711 provides:

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

degree if:

(a) The person intentionally, knowingly, or recklessly

causes substantial bodily injury to another;

(b) The person recklessly causes serious bodily injury

to another . . . .

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000864

09-MAR-2021

08:08 AM

Dkt. 94 MO
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

On appeal, Ngalu contends that the Circuit Court: (1)

erred by refusing the Defense of Others jury instruction; (2)

plainly erred by instructing the jury on Accomplice Liability;

(3) plainly erred by omitting a Mutual Affray instruction with

the Assault in the Third Degree (Assault Third) instruction; (4)

erred in denying Ngalu's motions for judgment of acquittal

(MJOA); and (5) Ngalu contends that he was denied effective

assistance of counsel and a right to a fair trial.

As explained below, because we hold that the Defense of

Others and Mutual Affray instructions should have been given, and

these errors were not harmless beyond a reasonable doubt, we

vacate and remand for a new trial.

I. BACKGROUND

The State of Hawai#i (State) charged Ngalu via Felony

Information and Non-Felony Complaint3

 filed on March 9, 2018,

along with a co-defendant Foukimoana Finau4 (Finau) as principals

and/or accomplices, with Assault First in violation of HRS § 707-

3 The Felony Information charged as follows:

COUNT ONE: 18-004028-001

That on or about the 27th day of January, 2018, in the 

County of Maui, State of Hawaii, FOUKIMOANA FINAU, also known as

FOU FINAU, also known as SIONE PEUAOPE FINAU, and PAULA SIAOSI

NGALU, JR., also known as SIAOSI NGALU, also known as SIAOSI

NGALU, JR., as principals and/or accomplices, did intentionally or

knowingly cause serious bodily injury to Makoanui Anzai, thereby

committing the offense of Assault in the First Degree in violation

of Section 707-710(1) of the Hawaii Revised Statutes.

"Serious bodily injury" means bodily injury which 

creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of

the function of any bodily member or organ.

(Bolding in original.) In Count Two, Ngalu was charged with Disorderly

Conduct, which was dismissed by the State prior to trial. 

4 A separate complaint was filed in 2CPC-18-0000148, in which Finau

was charged with Assault First and Disorderly Conduct under HRS § 711-1101(1). 

See In re Estate of Kam, 110 Hawai#i 8, 12 n.5, 129 P.3d 511, 515 n.5

(2006)(appellate courts may take judicial notice of records in a related case

not appearing in the record on appeal). Finau entered a no contest plea to a

lesser charge of Assault Second and was sentenced to five years imprisonment. 

The Disorderly Conduct charge was dismissed. 

2
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

710(1), for intentionally or knowingly causing serious bodily

injury to Makoanui Anzai (Anzai).

The following facts were adduced at a jury trial, which

commenced on March 12 through March 15, 2019, when the jury

returned its verdict. The incident giving rise to the assault

charge in this case occurred in the parking lot outside Lava's

Bar and Grill (Lava's), a nightclub in Kīhei, Maui, on January

27, 2018, shortly after Lava's closed at 1:30 a.m. Lava's is

located within a complex with multiple bars and nightclubs known

as "Triangles" or "The Triangle." Prior to the assault incident

in the parking lot, Anzai and Ngalu had a prior confrontation in

Lava's at around 11:30 p.m., when Ngalu confronted Anzai about

staring at Ngalu and disrespecting his fiancée. Bouncers

intervened, Ngalu and his fiancée left Lava's, and were

socializing with friends in the parking lot until Lava's closed. 

After Lava's closed, around a hundred Lava's patrons exited the

bar, including Anzai. In the parking lot, Ngalu confronted Anzai

a second time, and the encounter turned physical. The witnesses'

testimonies were conflicting about the sequence of events in the

parking lot confrontation between Anzai and Ngalu, and the role

of Finau in the confrontation. Anzai claimed that he was

assaulted by two men, and was struck a total of three times --

the first time in the face, the second time in the jaw, and the

third time being kicked to the head after he had fallen to the

ground. Testimony varied between the witnesses as to how, by

whom, and when Anzai was struck. With the exception of Ngalu's

fiancée, the other eyewitnesses and parties all had been

drinking. Anzai suffered a broken jaw from the confrontation,

was flown to Queen's Medical Center in Honolulu for surgery for

his jaw, and still experienced the effects of his injury at the

time of trial.

Testimony of complainant Anzai

Anzai arrived at Lava's around 11:30 p.m. with friends,

dressed in a black jacket and black pants. Anzai was 6'3" tall

and weighed about 360 pounds. While at the bar, Anzai consumed

3
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

two beers and two mixed drinks. He had an initial confrontation

with Ngalu inside the bar. He did not know Ngalu and had never

seen him before, and described Ngalu as "aggressive." Some

bouncers escorted Ngalu and his friends downstairs, but Anzai was

not asked to leave. Anzai stayed at Lava's for another 30-45

minutes until the bar closed, and he left. In the parking lot,

Ngalu confronted Anzai again, and Anzai told Ngalu that he didn't

know Ngalu or Pagan, told Ngalu he was not "disrespecting"

anyone, and offered to shake Ngalu's hand. Ngalu refused to

shake hands and just stared at Anzai. About thirty to forty

people were in the parking lot at this time. Anzai turned away

from Ngalu to walk towards a friend's car, when he was hit in the

face from behind, which felt like a "big sting." He did not see

who had hit him. As Anzai turned to see who had hit him, Anzai

heard someone yell, "Fou, what are you doing?"5

 and he was hit a

second time in the jaw, by Ngalu. With the second hit, Anzai

felt and heard a "crack" to his jaw and believed his jaw was

broken. He lost his balance, and began to fall. Ngalu kicked

Anzai on the right side of his face as Anzai fell. This was same

side of the face that Ngalu had struck earlier. Anzai remained

on the ground for ten seconds before standing up, holding his

"hanging" jaw, and was in a lot of pain. Anzai saw Ngalu

standing over him after he fell down, and also saw Finau

lingering around. Anzai gave a statement to the responding

police officer. Anzai denied telling the police officer that he

was first approached by Finau instead of Ngalu, or that Finau

said Anzai was disrespecting Ngalu's fiancée. Anzai did not try

to fight back or hit anyone. Anzai's friend drove him to the

hospital, and Anzai was later flown to Queen's Hospital in

Honolulu for surgery to his jaw. Anzai's jaw was wired shut for

about three months, during which time he was unable to speak, eat

solid foods, or move his jaw, resulting in a 60-pound weight

loss. He experienced loss of taste, permanent jaw nerve damage,

5 Anzai recognized the name "Fou" as a nickname for Finau, who was

Anzai's younger brother's classmate. 

4
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

loss of sensation to the lower jaw, migraines, and jaw pain that

continued through the date of trial.

Testimony of Officer Kemfort

Officer Apalo Kemfort (Officer Kemfort) responded to

the parking lot area of Kīhei Kalama Village at about 1:44 a.m.,

where he saw a crowd of people "all hyped up and enraged[.]" He

found Anzai seated on the asphalt "shocked, dazed" and

"confused[.]" Anzai's mouth was bleeding and bone was sticking

out of his mouth. Anzai said two males caused his injuries, 

identifying one as "Fou Finau" and the other one was unknown to

Anzai. It was difficult to understand Anzai since Anzai's mouth

would fill with blood and saliva when he tried to talk. The

officer photographed Anzai's injuries, searched for the suspects,

but was unable to find them. Officer Kemfort already knew Finau

from other cases in the Kīhei area, for underage drinking, and

causing a disturbance. The officer's written report included a

statement by Anzai, that Finau had punched him in the back of the

head and that he was kicked while on the ground. Anzai

subsequently identified Finau and Ngalu to a detective, as the

individuals who had assaulted him.

Testimony of eyewitness Jackson

Eyewitness Gabriel Jackson (Jackson) testified that he

was briefly at Lava's with two friends and had one drink, before

heading to another bar in Triangle's at about 1:00 a.m. There

were at least 30 people in the parking lot. He observed a man

dressed in black (Anzai) walking in the parking lot. Anzai was

"punched once[,]" fell to the ground, where "another person

[came] up and kick[ed] him."6

 The male who punched Anzai had

6 Jackson testified as follows:

Q. Okay. What happened after that – after he got

punched?

A. Kind of just noticed him weaken. And then as he 

went down, that's when the next –- it was quick. It was 

kind of just right after the other. So right after he got 

hit the first time, the next guy came in and he just 

(continued...)

5
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

"coppery bleached" hair, and the same male left the parking lot

afterward, heading toward South Kīhei Road. The other male who

kicked Anzai had a medium build, was wearing a "white T-shirt",

and went towards the back of the parking lot afterward. Jackson

did not recall making prior statements to the police that night,

but testified that he "maybe" said that "the person who hit"

Anzai was wearing a maroon tank top. Jackson was "pretty sure"

that the person who kicked Anzai was wearing a white shirt."

Testimony of eyewitness Fehoko

Eyewitness Denney Fehoko (Fehoko), Finau's uncle who

lived with Finau, was also at Lava's with friends that night,

where he had four beers. He left Lava's at the 1:30 a.m. closing

time to join friends in the parking lot. He heard females

yelling "stop it" and noticed a "fight" going on in the parking

6(...continued)

kicked him, and that finished it.

Q. So you said a next guy came in.

A. Yes.

Q. Where did that guy come from?

A. I would say he came more from his left side, 

came from the left side, and then that's when he gave him 

the kick. And then soon after that, he just left the 

scene.

Q. Okay. The second guy, was there –- did you 

notice any confrontation or conversation or anything 

between the person who got attacked and the second guy?

A. No.

Q. No. So did that person just also come out of

nowhere?

A. Yes.

Q. And this second guy, you –- when you first 

observed the second guy, you said that's because he –- you 

saw him kick –-

A. Uh-huh.

Q. –- him on the ground?

A. Right.

6
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

lot with Anzai and Ngalu. Fehoko knew Anzai from a party, and

knew Ngalu from childhood. Anzai was on the ground, and Ngalu

was "running" to the fight, and kicked Anzai in the face. He did

not see Anzai fall. There were about 30 to 40 people in the

parking lot. He was on the other side of the parking lot, and

there were a couple of people between him and the fight. Fehoko

saw Finau walking away after the fight when the crowd dissipated,

but did not see Finau hit anyone. Finau had frosted blonde hair,

while Ngalu did not. On cross-examination, Fehoko admitted

seeing Finau running away from the area. Fehoko did not see how

the fight started. He saw Ngalu kick Anzai once, and did not see

Ngalu punch Anzai; however, in a prior police statement he said

he saw Ngalu punch Anzai once on the side of the head. From the

time of the first "screaming" until everyone dispersed, it was

"pretty quick" and "fast."

Ngalu's statement to the police

Ngalu gave a statement to a police detective on

February 14, 2018, a few weeks after the incident. The recorded

statement was played for the jury, in which Ngalu recounted the

following details about the second confrontation with Anzai in

the parking lot. As Ngalu and Anzai were speaking, Finau

approached Anzai from the right rear side and punched Anzai on

the right side of the face. Ngalu did not know that Finau had

been there. Anzai then punched Ngalu, a female hit Ngalu on the

back, and Ngalu then punched Anzai on his head, causing Anzai to

fall. Ngalu told his fiancée, "Let's go," and they left. When

Anzai was on the ground, Finau punched him. Ngalu felt that

Anzai hit Ngalu, probably thinking that Ngalu was the one who hit

him. In total, Ngalu punched Anzai once, and Finau punched Anzai

"a couple times." Ngalu hit Anzai only one time, and denied

kicking Anzai or seeing anyone kick Anzai. Ngalu said Finau was

"like family" but he rarely saw Finau. Ngalu denied being with

Finau at the time of the incident, and said Finau showed up

randomly.

7
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

Physician's testimony

The Maui Memorial Hospital emergency room physician who

treated Anzai on the night of the incident diagnosed a jaw

fracture. CT scans were done for Anzai's head, neck, and face,

and Anzai was then transferred to Queen's Medical Center to be

treated by a oral maxillary facial surgeon. Anzai's jaw was

broken in three different parts, with only soft tissue holding

his jaw in place. Anzai's injuries were consistent with "a great

deal of force to the face[,]" and could have resulted from one

hit, two hits, or a fall to the ground, but were not consistent

with being struck on the back of the skull. The doctor opined

that a "hit alone to the top of the head without any other

extenuating circumstances" could not cause the type of fracture

Anzai sustained, but "force to the top of the head and a

subsequent fall" could possibly cause that type of fracture. A

large person could cause this degree of damage with one hard hit

to the face. If enough force were applied to the right side of

the mandible, it could cause a break in the left portion. At a

subsequent examination a week prior to trial, on March 5, 2019,

Anzai still suffered numbness and nerve damage at the injury

site, altered sense of taste and difficulty with the bottom right

side of his face. The doctor opined, to a reasonable medical

probability, that these symptoms were due to the injury Anzai

sustained on January 27, 2018.

Denial of MJOA

After the State's case-in-chief, Ngalu moved for a 

Judgment of Acquittal, which was denied.

Testimony of Pagan (Ngalu's fiancée)

Ngalu's fiancée Kaylee Sylva Pagan (Pagan) accompanied

Ngalu, along with friends, to Lava's at around 11:00 p.m. Ngalu,

who was six feet tall and weighing about 300 pounds, wore a

maroon shirt, shorts and slippers. Finau was an acquaintance of

Ngalu and not his friend. Pagan described Finau as "not a real

pleasant person to be around[,]" and that Finau was a drug user

and liked to "get in trouble[.]" Ngalu had at least seven drinks

8
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

that evening, consuming three at a friend's house before heading

to Lava's, followed by three to four beers in twenty to thirty

minutes at Lava's. Pagan was not drinking. Pagan noticed Anzai

staring at her and Ngalu, and his glaring made her feel

uncomfortable because she did not know why Anzai was staring at

them. She and Ngalu ended up leaving Lava's after 20 to 30

minutes, following Ngalu's confrontation with Anzai. Pagan and

Ngalu stayed in the parking lot area where her car was parked,

talking with their friends. At closing time, when people began

leaving the bars, there was a second confrontation in the parking

lot between Ngalu and Anzai, when Finau "came out of nowhere" and

struck Anzai on the right side of his jaw. Pagan stood behind

Ngalu because she was afraid of getting hurt by Anzai and by the

crowd around them.7 A female came from behind and hit Pagan's

hand, saying she was trying to get to "Makoa" (Anzai's first

name). After exchanging words with the female, Pagan turned to

see Ngalu standing by her, with Finau "coming out of a hit" and

Anzai "dropping to the ground." She did not see Ngalu hit Anzai,

but she was distracted by the female who hit her. Pagan told

Ngalu that she had been hit. Pagan denied that Ngalu ran up to

the fight, and said the crowd swarmed them and pushed them

towards the fight.

7 Pagan testified in relevant part as follows:

A. . . . that's when Fo [Finau] came out of nowhere and

had hit him on the right side of his jaw. And at that point, I

was standing kind of behind [Ngalu] and holding onto his arms

because I was scared and I didn't feel – I didn't feel safe.

Q. You were scared. What were you scared of?

A. I was scared of getting hurt. I was scared of him

getting hurt.

Q. Getting hurt by whom?

A. By Makoa, by the crowd. There was a crowd around us. 

I didn't want someone from the crowd to swing at us .

. . .

9
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

Testimony of Ngalu

Ngalu testified that he and Pagan left Lava's because 

Anzai's staring made them uncomfortable, and he and Anzai

exchanged words about it at Lava's. Ngalu had two to three beers

prior to arriving at Lava's, and then three to four beers at

Lava's. Outside in the parking lot, Ngalu confronted Anzai a

second time after Lava's closed, because Anzai was staring at

them again as he was leaving. Ngalu was six feet tall, but Anzai

was taller than him. Ngalu denied being loud, aggressive or

confrontational with Anzai. Ngalu knew that Anzai was dating

Ngalu's ex-girlfriend and believed that may be why Anzai did not

like him. Ngalu claimed he confronted Anzai not to start a

fight, but because it was a small island, they would likely run

into each other again, so he wanted to clear the air and "squash"

the situation. He denied that Anzai tried to shake his hand. 

Anzai told Ngalu he did not know Ngalu, and Anzai turned to walk

away. Ngalu also turned to rejoin Pagan and their group of

friends.

At that moment, Finau "came out of nowhere and whacked

[Anzai]." Anzai then turned and hit Ngalu on the chest with a

closed fist. Ngalu then hit Anzai on top of his head as a

"natural reaction[.]" Finau then punched Anzai a second time and

Anzai fell to the ground. Ngalu denied kicking Anzai. Finau was

not part of Ngalu's group of friends. As Finau hit Anzai, Pagan

pulled Ngalu back and told him that she had been hit. Ngalu

explained, "I wanted to leave because I didn't want to get hit

again or I didn't want her to get hit so we turned around and

walked away." Ngalu denied hitting Anzai in the jaw, and said he

hit Anzai only one time. Ngalu agreed that between himself and

Finau, the two of them against Anzai, that Anzai was punched in

the face three times. A large crowd in the parking lot

surrounded them, trying to see the fight. The crowd was close,

within arm's length. There were two or three other fights

happening at the same time. When asked if he intended to hurt

10
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

Anzai, Ngalu testified:

A. No. I was trying to protect myself. I

was trying to protect myself protect my fiancee. She

was behind me and it was -- so I guess to give me

time to back up -- even I didn't know what -- if he

was going to hit me again or if someone else was

going to hit my fiancee. It was kind of a reaction

because I had gotten hit.

Ngalu did not know why Finau "false'd" Anzai, but had previously

seen Finau start a fight for no reason. Finau was related to

Ngalu, but Ngalu considered Finau to be more of an acquaintance,

and did not associate with Finau, because "anyone that associates

with him is trouble also."

Denial of renewed MJOA

After the defense rested its case-in-chief, the Circuit

Court denied Ngalu's renewed MJOA.

Jury instructions

Along with the jury instruction on the charged offense

of Assault First, the Circuit Court instructed the jury on the

included offenses of Assault Second and Assault Third. The

included offense instruction for Assault Third was in Instruction

No. 18, as follows:

If and only if (1) you find the Defendant PAULA SIAOSI

NGALU, JR., also known as SIAOSI NGALU, also known as SIAOSI

NGALU, JR. not guilty of Assault in the First Degree, or you

are unable to reach a unanimous verdict as to Assault in the

First Degree, and in addition (2) you find the Defendant not

guilty of both of the alternatives of Assault in the Second

Degree, or you are unable to reach a unanimous verdict as to

both of the alternatives, or you find the Defendant not

guilty of one of the alternatives and are unable to reach a

unanimous verdict as to the other alternative, then you must

consider whether the Defendant is guilty or not guilty of

the included offense of Assault in the Third Degree as a

principal and/or accomplice.

A person commits the offense of Assault in the Third

Degree if he intentionally, knowingly, or recklessly causes

bodily injury to another person.

There are two material elements of the offense of

Assault in the Third Degree, each of which the prosecution

must prove beyond a reasonable doubt.

1. That on or about January 27, 2018, in the County

of Maui, State of Hawaii, the Defendant caused

bodily injury to Makoanui Anzai; and

11
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

2. That the Defendant did so intentionally,

knowingly, or recklessly.

An instruction for Assault in the Third Degree by Mutual Affray

(Mutual Affray) was not requested by the defense, nor given by

the court sua sponte.8 The jury instruction for Defense of

Others When Deadly Force Is Not At Issue (Defense of Others)9 was 

8 Hawai#i Standard Jury Instructions Criminal (HAWJIC) 9.21A

provides:

If you find that the prosecution has proven the

offense of Assault in the Third Degree beyond a

reasonable doubt, then you must also consider whether

the fight or scuffle was entered into by mutual

consent, whether expressly or by conduct.

You must determine whether the prosecution has proven beyond

a reasonable doubt that the fight or scuffle was not entered

into by mutual consent. This determination must be

unanimous and is to be indicated by answering 'Yes' or 'No'

on a special interrogatory that will be provided to you.

See HRS § 707-712(1)(a) (2014).

9 Ngalu requested the following jury instruction on Defense of

Others, which is based on HAWJIC 7.02B:

Defense of others is a defense to the charges of

Assault in the First Degree, Assault in the Second Degree,

Assault in the Third Degree. The burden is on the

prosecution to prove beyond a reasonable doubt that the

force used by the defendant was not justifiable. If the

prosecution does not meet its burden, then you must find the

defendant not guilty.

The use of force upon or toward another person is

justifiable to protect a third person if, under the

circumstances as the defendant reasonably believes them to

be, the third person would be justified in using force to

protect herself on the present occasion against the use of

unlawful force by the other person and the defendant

reasonably believes that his intervention is immediately

necessary to protect the third person. The reasonableness

of the defendant's belief that the use of 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. The defendant may

estimate the necessity for the use of force under the

circumstances as he reasonably believes them to be when the

force is used, without retreating. The defendant's belief

that the use of force was immediately necessary may be

mistaken, but reasonable.

(continued...)

12
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

not given over objection by defense counsel:

THE COURT: [...]

7.02B, the Court is going to refuse that.

[Defense counsel], the second -- the second

version that you submitted, 7.02B, the most -- the newest

version, most recent version, do you want to -- the Court

is refusing this. Do you want to say anything regarding

your 7.02B, the most recent version?

[DEFENSE COUNSEL]: The objection that I have to

it being denied is that I do believe that there is

evidence to support a defense of others instruction for

the jury.

THE COURT: [Prosecutor]?

[PROSECUTOR]: The State believes that

there's no scintilla of evidence, namely -- well, the

defendant himself testified that the reason that he hit

9(...continued)

"Force" means any bodily impact, restraint, or

confinement, or the threat thereof.

"Unlawful force" means force which is used without the

consent of the person against whom it is directed and the

use of which would constitute an unjustifiable use of deadly

force or force. A person cannot consent to the infliction

of death, serious bodily injury, or substantial bodily

injury. 

"Serious bodily injury" means bodily injury which

creates a substantial risk of death or which causes serious

permanent disfigurement, or protracted loss or impairment of

the function of any bodily member or organ.

"Substantial bodily injury" means bodily injury which

causes: A major avulsion, laceration, or penetration of the

skin, a bone fracture, a tearing, rupture, or corrosive

damage to the esophagus, viscera, or other internal organs.

"Bodily injury" means physical pain, illness, or any

impairment of physical condition.

Defense of others is not available for the offense of

Assault in the Third Degree if the prosecution proves that:

(1) the defendant was reckless in believing that

he/she was justified in using deadly force or force to

protect a third person against another person; or

(2) the defendant was reckless in acquiring or failing

to acquire any knowledge or belief which was material to the

justifiability of his use of force to protect a third person

against another person.

13
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

the victim, Makoa, was because Makoa hit him first after

Finau hit him and that it was a natural reaction. The --

he never testified that the reason that he hit Makoa was

to defend his girlfriend. His girlfriend testified in

this case, and she never testified that she was directly

threatened by Makoa nor did she testify that she -- that

he hit her or that she herself felt the need to defend

herself. So the State doesn't believe that this applies

in this case.

. . . .

THE COURT: No? Okay.

The Court agrees as well that there appears

to have been no evidence regarding defense of others, so

the Court is going to refuse the most recent, 7.02B,

submitted by defense.

Verdict, sentencing, appeal

Following the Circuit Court's instructions to the jury

and closing arguments on March 15, 2019, the jury returned a

verdict the same day, finding Ngalu guilty of the included

offense of Assault Second in the first alternative for

intentionally, knowingly, or recklessly causing substantial

bodily injury to Anzai, as principal or accomplice to Finau. 

Ngalu was sentenced on November 20, 2019, and thereafter timely

filed a notice of appeal.

On appeal, Ngalu contends that the Circuit Court (1)

erred when it refused his request to instruct the jury on the

Defense of Others; (2) plainly erred in instructing the jury on

Accomplice Liability; (3) plainly erred in omitting a Mutual

Affray instruction with the Assault Third instruction; (4) erred

in denying Ngalu's MJOA and renewed MJOA; and (5) Ngalu contends

that he was denied effective assistance of counsel and a right to

a fair trial. Because we vacate and remand for a new trial based

on instructional errors, we do not reach Ngalu's point of error

regarding ineffective assistance of his trial counsel.10

10 During cross-examination of the detective about the photographic

lineup, defense counsel attempted to ask about a notation made by Anzai in the

comment section of the photographic lineup, but the Circuit Court sustained

the State's hearsay objection. Ngalu claimed that his counsel's failure to

prepare for this questioning, as well as the failures to preserve the

instructional errors he now raises on appeal, constituted ineffective

(continued...)

14
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

II. STANDARD OF REVIEW

A. Jury Instructions

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. 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. Error is not to be viewed in

isolation and considered purely in the abstract. It must be

examined in the light of the entire proceedings and given

the effect which the whole record shows it to be entitled. 

In that context, the real question becomes whether there is

a reasonable possibility that error may have contributed to

conviction. If there is such a reasonable possibility in a

criminal case, then the error is not harmless beyond a

reasonable doubt, and the judgment of conviction on which it

may have been based must be set aside.

State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)

(brackets omitted) (quoting State v. Gonsalves, 108 Hawai#i 289,

292-93, 119 P.3d 597, 600-01 (2005)) (citations omitted). 

"[E]rroneous jury instructions may be grounds for reversal

despite counsel's failure to object at trial because it is

ultimately the trial court that is responsible for ensuring that

the jury is properly instructed." State v. Kikuta, 125 Hawai#i

78, 95, 253 P.3d 639, 656 (2011) (citing Nichols, 111 Hawai#i at

335, 141 P.3d at 982) (brackets and internal quotation marks

omitted). "[O]nce instructional error is demonstrated," the

reviewing court will vacate the judgment "without regard to

whether timely objection was made, if there is a reasonable

possibility that the error contributed to the defendant's

conviction, i.e., that the erroneous jury instruction was not

harmless beyond a reasonable doubt." Id. (citations, brackets

and internal quotation marks omitted).

B. Motion for Judgment of Acquittal

The standard to be applied by the trial court in

ruling upon a motion for a judgment of acquittal is whether,

upon the evidence viewed in the light most favorable to the

prosecution and in full recognition of the province of the

10(...continued)

assistance of counsel.

15
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

trier of fact, a reasonable mind might fairly conclude guilt

beyond a reasonable doubt. An appellate court employs the

same standard of review.

State v. Hicks, 113 Hawai#i 60, 69, 148 P.3d 493, 502 (2006)

(quoting State v. Maldonado, 108 Hawai#i 436, 442, 121 P.3d 901,

907 (2005)).

III. DISCUSSION

A. The Circuit Court erred by refusing to 

instruct the jury on the Defense of Others 

jury instruction where there was support in 

the evidence to do so.

Ngalu contends that the Defense of Others instruction 

should have been given at trial because there was more than a

scintilla of evidence to support giving the instruction. The

State responds that the instruction was correctly refused under

HRS § 703-305(1)(a), because there was no evidence showing that

Pagan needed protection from Anzai or that Ngalu believed

circumstances were such that Pagan needed protection from Anzai.

"It is well-established that a defendant is entitled to

an instruction on a defense having any support in the evidence,

no matter how weak, unsatisfactory, or inconclusive the evidence

might have appeared to the court." Kikuta, 125 Hawai#i at 90,

253 P.3d at 651 (citations omitted). HRS § 703-305 (2014),

entitled "Use of force for the protection of other persons"

provides:

(1) Subject to the provisions of this section and of section

703-310, the use of force upon or toward the person of

another is justifiable to protect a third person when: 

(a) Under the circumstances as the actor believes them

to be, the person whom the actor seeks to protect

would be justified in using such protective force; and 

(b) The actor believes that the actor's intervention

is necessary for the protection of the other person.

In this case, there was evidence to support an

instruction on the Defense of Others. Ngalu testified that after

Finau hit Anzai, Anzai hit Ngalu, and Ngalu hit Anzai back. 

Ngalu believed that Anzai mistakenly thought Ngalu had struck him

16
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

instead of Finau. They were surrounded by a crowd and it appears

from the record that the circumstances were chaotic and volatile. 

Pagan was standing behind Ngalu at about that time, and Ngalu

believed there was a chance Pagan could get hit. Ngalu claimed

he "didn't know . . . if [Anzai] was going to hit [Ngalu] again

or if someone else was going to hit [Pagan]." In striking Anzai

at that time, Ngalu explained, "I was trying to protect myself"

and "protect my fiancee.".

The Defense of Others "permits a person to use force to

protect another person when the actor believes the other person

would have been justified in using force to protect [her]self and

believes that his intervention is necessary to protect the other

person." HRS § 703-305 cmt. (2014); State v. Mark, 123 Hawai#i

205, 220, 231 P.3d 478, 493 (2010). "In other words, if the

actor knew that the third person could not reasonably believe

that the use of force was justified, the actor could not use

force in the protection of the third person." Mark, 123 Hawai#i

at 221, 231 P.3d at 494. 

The record shows that there was evidence to support

Ngalu's belief that Pagan would be justified in using protective

force in light of the circumstances at the time. See HRS § 703-

305(1)(a). Prior to the incident in the parking lot, Pagan was

already uncomfortable from Anzai's staring at her and Ngalu

inside of Lava's, which led to her and Ngalu leaving the bar. 

Pagan testified that when Finau "came out of nowhere" and hit

Anzai in the jaw, she stood behind Ngalu and held onto his arms

because she was scared and did not feel safe. After Finau hit

Anzai, Pagan testified that the crowd swarmed around them, and

Pagan was hit by a female who said she was trying to get to

"Makoa" (Anzai). Both Ngalu and Pagan testified that Pagan told

Ngalu she had been hit. Pagan expressed fear of Anzai,

testifying that she felt "scared of getting hurt" "[b]y Makoa"

and "by the crowd" as she stood behind Ngalu. The crowd

consisted of around 30 to 40 people who were "all hyped up,"

"enraged," "loud," "drunk," and "wild." Pagan testified that she

17
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

was scared, nervous, and "did not feel safe in that environment"

because the crowd was "amped up around [her]." Thus, there was

evidence that Ngalu believed his intervention (of striking Anzai

after Anzai struck him), was necessary to protect Pagan as well

as himself. See HRS § 703-305(1)(b).

"[I]t is not for this court to determine whether the

testimony of one is more credible than the other." Kikuta, 125

Hawai#i at 97, 253 P.3d at 658. The threshold warranting a

Defense of Others instruction is whether there is "any support in

the evidence" for the instruction, "no matter how weak,

unsatisfactory, or inconclusive" the evidence may appear to be. 

Id. at 90, 253 P.3d at 651 (emphasis added) (citation omitted). 

The threshold mandating the instruction was met in this case. 

The erroneous refusal of the Defense of Others

instruction was not harmless beyond a reasonable doubt. The

Circuit Court did instruct the jury on self-defense under HRS § 

703-304 (2014). The jury rejected Ngalu's claim of self-defense,

and found him guilty of the lesser included offense of Assault

Second. "[I]t is possible that a defendant could be justified in

using force to protect another person, even if the defendant

himself or herself was not justified in using force for self

protection." Mark, 123 Hawai#i at 224, 231 P.3d at 497 (italics

omitted). In this case, while the jury may have reasonably

concluded, based on the facts it found, that Ngalu was not

entitled to self-defense, the jury could have evaluated the

evidence differently with respect to the Defense of Others. A

Defense of Others instruction would have required the jury to

evaluate the circumstances of Ngalu's use of force against Anzai,

considering Ngalu's belief with respect to any necessity of

protecting Pagan. See HRS § 703-305. In light of the record,

there is a reasonable possibility that the omission of the

Defense of Others instruction may have contributed to Ngalu's

conviction, and the error is not harmless beyond a reasonable

doubt. See Nichols, 111 Hawai#i at 334, 141 P.3d at 981.

18
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

B. The Circuit Court did not err in 

instructing the jury on Accomplice Liability.

Ngalu contends that the Circuit Court plainly erred in 

instructing the jury on Accomplice Liability under HRS § 702-222

(2014)11 because there was insufficient evidence to do so. The

State responds that the evidence was sufficient. 

"In the context of the accomplice statute, the Model

Penal Code makes clear that 'intent to promote or facilitate'

means to have the conscious objective of bringing about the

commission of the offense." State v. Basham, 132 Hawai#i 97,

109, 319 P.3d 1105, 1117 (2014). "Section 702–222 requires that

to be guilty as an accomplice, a person must act with the intent

of promoting or facilitating the commission of the crime." State

v. Soares, 72 Haw. 278, 282, 815 P.2d 428, 430 (1991). "Mere

presence at the scene of an offense or knowledge that an offense

is being committed, without more, does not make a person an

accomplice to that offense." State v. Acker, 133 Hawai#i 253,

286, 327 P.3d 931, 964 (2014) (quoting HAWJIC 6.01).

In this case, there was evidence through the

testimonies of Jackson and Anzai, of Ngalu acting as an

accomplice to Finau. Jackson testified he observed Anzai being

punched and kicked by two men in quick succession. One male had

bleached hair, fitting Finau's description, and the other male

had a maroon tank top, matching Ngalu's attire. Anzai testified

that while he did not see who first hit him, he heard someone say

11 HRS § 702-222 provides:

A person is an accomplice of another person in the

commission of an offense if:

(1) With the intention of promoting or facilitating the

commission of the offense, the person:

(a) Solicits the other person to commit it;

(b) Aids or agrees or attempts to aid the other person

in planning or committing it; or

(c) Having a legal duty to prevent the commission of

the offense, fails to make reasonable effort so to do;

or

(2) The person's conduct is expressly declared by law to

establish the person's complicity.

19
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

"Fou what are you doing" after the first hit. When Anzai turned,

he received a second hit from Ngalu. When Anzai fell, Ngalu

kicked him. While on the ground, Anzai saw Ngalu standing over

him and Finau in the area. Thus, there was circumstantial

evidence of Ngalu aiding Finau, with intent to promote or

facilitate Finau's assault of Anzai. See HRS § 702-222(1)(b). 

The Circuit Court did not err in giving the Accomplice Liability

instruction. Assuming arguendo that such instruction was

erroneously given, it was harmless beyond a reasonable doubt

because there was substantial evidence of Ngalu's liability as

the principal under HRS § 702-222(1)(b).

C. The Circuit Court plainly erred by 

omitting an instruction on Mutual Affray.

Ngalu contends that the Circuit Court plainly erred by

not sua sponte instructing the jury on Mutual Affray when the

Circuit Court gave the instruction for the lesser included

offense of Assault Third. The State responds that (1) there was

insufficient evidence to support a Mutual Affray instruction and

(2) even if the Circuit Court should have submitted such

instruction, any error was harmless beyond a reasonable doubt

under State v. Magbulos, 141 Hawai#i 483, 413 P.3d 387 (Ct. App.

2018)(cert. rejected by State v. Magbulos, SCWC-14-0001337 (June

21, 2018)), because the jury convicted Ngalu of the "higher"

included offense of Assault Second instead of Assault Third. 

Thus, according to the State, an instruction on Mutual Affray

would not have changed the outcome of Ngalu's conviction.

"Assault in the third degree is a misdemeanor unless

committed in a fight or scuffle entered into by mutual consent,

in which case it is a petty misdemeanor." HRS § 707-712(2). 

Mutual Affray "is not a lesser included offense of Assault in the

Third Degree," but is a "mitigating defense that reduces the

offense of Assault in the Third Degree to a petty misdemeanor." 

Kikuta, 125 Hawai#i at 95, 253 P.3d at 657 (citing HRS § 707-

712(2)). The Kikuta court held that a trial court "must submit a

20
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

mutual affray instruction to the jury where there is any evidence

in the record that the injury was inflicted during the course of

a fight or scuffle entered into by mutual consent, as indicated

in HAWJIC 9.21." Id. at 96, 253 P.3d at 657 (emphasis added).

"[C]onsent" includes implied consent. Id. Consent may be

"inferred from one's conduct" or may be "implied from an

individual's words, gestures, or conduct." Id. (citations,

internal quotation marks omitted). The Kikuta court determined,

from its review of the conflicting testimonies of the defendant

and complainant, that "there was some evidence adduced from which

the complainant's consent to affray may be implied" and thus, the

Mutual Affray instruction should have been given. Id.

The State's argument that the failure to give the

Mutual Affray instruction is harmless beyond a reasonable doubt

where the jury convicted Ngalu of a higher grade offense instead

of Assault Third, is without merit. In Magbulos, the ICA found

any error was harmless, where the defendant was charged and

convicted of second-degree murder, and the trial court had denied

instructions on the lower-level lesser included offenses of

Assault Second, Assault Third, and Mutual Affray. Magbulos, 141

Hawai#i at 499, P.3d at 403. The Magbulos court applied a

harmless error analysis as to the failure to instruct on lesser

included offenses "at least three levels below the second-degree

murder" for which the defendant was convicted. Id. The supreme

court in Kikuta rejected applying a lesser-included-offenses

analysis to Mutual Affray, because Mutual Affray is "not a lesser

included offense of Assault in the Second Degree, but rather, a

mitigated defense to Misdemeanor Assault in the Third Degree." 

Kikuta, 125 Hawai#i at 95, 253 P.3d at 656. Therefore, Magbulos

does not apply. 

In State v. Henley, 136 Hawai#i 471, 480, 363 P.3d 319,

328 (2015), where the defendant was charged with Assault Third

and the trial court did not give the Mutual Affray instruction,

the supreme court held, after reviewing the evidence and applying

21
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

Kikuta, that "we cannot say that the omission of the mutual

affray instruction was harmless beyond a reasonable doubt, as it

is possible, on this record, that given a choice between

convicting Henley on misdemeanor Third Degree Assault and the

mitigated offense of petty misdemeanor assault, the jury could

have convicted Henley on the latter." 

In this case, the totality of evidence shows that given

a choice between convicting Ngalu of the charged offense of

Assault First and the mitigated offense of Assault Third by

Mutual Affray, it is possible that the jury could have convicted

Ngalu on the latter. See id. Ngalu and Pagan claimed that the

two confrontations were precipitated by Anzai staring at them,

first at Lava's and again in the parking lot. Eyewitness Fehoko

described seeing a "fight" between Anzai and Ngalu. Ngalu

testified that he hit Anzai in response to Anzai hitting him

first, and claimed he did so to protect himself and Pagan. While

the testimony between the witnesses is conflicting regarding who

hit who first, and the sequence of events thereafter, Ngalu's

testimony constituted evidence from which Anzai's "consent to

affray may be implied." Kikuta, 125 Hawai#i at 96, 253 P.3d at

657. The threshold warranting a Mutual Affray instruction is

whether there is "any evidence in the record that the injury was

inflicted during the course of a fight or scuffle entered into by

mutual consent[.]" Id. at 95, 253 P.3d at 547 (emphasis added). 

This threshold was met in this case.

On this record, we cannot say that the omission of the

Mutual Affray instruction was harmless beyond a reasonable doubt.

In this case, there were multiple factual disputes and

determinations of criminal liability between the two defendants

for the jury to resolve as factfinder. These issues included

which defendant did a specific act or acts, which act or acts

resulted in bodily injury to Anzai, the degree of the injury

sustained (bodily injury, substantial bodily injury or serious

bodily injury), and the causation for the injury of the broken

22
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

jaw presented through the medical expert.

Ngalu claimed that Finau "false'd" Anzai, Anzai hit

Ngalu in reaction, Ngalu hit Anzai once on Anzai's head or on top

of his head, then Finau hit Anzai a second time, and Anzai fell. 

Ngalu denied kicking Anzai on the ground. The doctor opined that

a "hit alone to the top of the head without any extenuating

circumstances" could not cause the type of fracture Anzai

sustained. If the jury believed Ngalu's version of events, that

Ngalu struck Anzai once at the top of his head, only after Anzai

hit Ngalu first in an implied mutual affray, and that such a "hit

alone to the top of the head" would not cause the substantial

bodily injury required for Assault Second per the doctor's

testimony, then the jury could have convicted Ngalu of the

mitigated offense of Mutual Affray if the instruction had been

given. See Henley, 136 Hawai#i at 480, 363 P.3d at 328. Because

there was a reasonable possibility that the omission of the

Mutual Affray instruction may have contributed to Ngalu's

conviction for Assault Second, we cannot say that the error was

harmless beyond a reasonable doubt. See Nichols, 111 Hawai#i at

334, 141 P.3d at 981.

D. Ngalu's remaining points of error. 

Ngalu's contention that the Circuit Court erred in

denying Ngalu's MJOA at the end of the State's case, and Ngalu's

renewed MJOA at the conclusion of the evidence is without merit. 

Viewing the evidence in the light most favorable to the State and

fully recognizing the province of the factfinder, a reasonable

mind might fairly conclude guilt beyond a reasonable doubt as to

the charged offense of Assault First. See Hicks, 113 Hawai#i at

69, 148 P.3d at 502. The Circuit Court did not err in concluding

that the evidence was sufficient and denying Ngalu's MJOAs. See

Hawai#i Rules of Penal Procedure Rule 29(a).

Because we vacate and remand for a new trial for the

reasons set forth above, we do not reach Ngalu's remaining point

of error regarding ineffective assistance of his trial counsel.

23
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

IV. CONCLUSION

Based on the foregoing, we vacate the Amended Judgment,

and this matter is remanded for a new trial.

DATED: Honolulu, Hawai#i, March 9, 2021.

On the briefs:

Dwight C.H. Lum

for Defendant-Appellant

Gerald K. Enriques

Deputy Prosecuting Attorney

County of Maui

for Plaintiff-Appellee

/s/ Katherine G. Leonard

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

24
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

CONCURRING AND DISSENTING OPINION BY GINOZA, CHIEF JUDGE

I concur with the majority that, given the evidence in

this case, the Circuit Court erred in not instructing the jury on

two separate defenses: "Defense of Others" under Hawaii Revised

Statutes (HRS) § 703-305 (2014) and "Mutual Affray" under HRS 

§ 707-712(2) (2014).1 Defense of Others is a potential defense

with respect to Assault in the First Degree (Assault One),

Assault in the Second Degree (Assault Two) and Assault in the

Third Degree (Assault Three). See generally State v. Matuu, 144

Hawai#i 510, 445 P.3d 91 (2019) (regarding conviction for Assault

One); State v. Jhun, 83 Hawai#i 472, 482, 927 P.2d 1355, 1365

(1996) (regarding conviction for Assault Two); State v. Pavao, 81

Hawai#i 142, 913 P.2d 553 (App. 1996) (regarding conviction for

Assault Three). Here, Defendant Paula Siaosi Ngalu, Jr. (Ngalu)

was charged with Assault One and convicted of Assault Two, and

therefore the failure to instruct the jury on Defense of Others

was not harmless error because Defense of Others was a potential

defense to the criminal offense on which Ngalu was convicted. In

other words, there is a reasonable possibility that the failure

to instruct the jury regarding Defense of Others contributed to

Ngalu's conviction for Assault Two. On this basis, Ngalu's

conviction must be vacated.

I respectfully dissent, however, from the majority's

conclusion that the failure to instruct on the Mutual Affray

defense was plain error, and not harmless error. See Hawai#i

Rules of Penal Procedure (HRPP) Rule 52.2

 The Mutual Affray

defense applies only with respect to Assault Three, for which

Ngalu was not convicted. The jury was given an instruction on

1 I also concur that the Circuit Court did not err in giving a jury

instruction on accomplice liability. 

2 HRPP 52 provides:

(a) Harmless Error. Any error, defect, irregularity or

variance which does not affect substantial rights shall be

disregarded.

(b) Plain Error. Plain errors or defects affecting

substantial rights may be noticed although they were not

brought to the attention of the court.
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

the lesser included offense of Assault Three, and thus was given

the opportunity to consider whether to convict Ngalu on that

lesser included offense, but did not.3 Given these

circumstances, I conclude the Circuit Court's error in not

instructing the jury regarding the Mutual Affray defense to

Assault Three was harmless error, because there was no reasonable

possibility that this error contributed to Ngalu's conviction for

Assault Two.

In State v. Kikuta, 125 Hawai#i 78, 253 P.3d 639

(2011), the Hawai#i Supreme Court stated with regard to plain

error review of erroneous jury instructions that:

once instructional error is demonstrated, this court will

vacate the judgment of the court, without regard to whether

timely objection was made, if there is a reasonable

possibility that the error contributed to the defendant's

conviction, i.e., that the erroneous jury instruction was

not harmless beyond a reasonable doubt.

Id. at 95, 253 P.3d at 656 (citing State v. Nichols, 111 Hawai#i

327, 337, 141 P.3d 974, 984 (2006)) (internal quotation marks and

brackets omitted).

With regard to Assault Three, HRS § 707-712 provides:

HRS § 707-712 Assault in the third degree. (1) A person

commits the offense of assault in the third degree if the

person:

(a) Intentionally, knowingly, or recklessly causes

bodily injury to another person; or

(b) Negligently causes bodily injury to another

person with a dangerous instrument.

(2) Assault in the third degree is a misdemeanor

unless committed in a fight or scuffle entered into by

mutual consent, in which case it is a petty misdemeanor.

(Emphasis added).

In Kikuta, the Hawai#i Supreme Court held that the

Circuit Court committed plain error for failing to give a Mutual

Affray instruction with respect to the offense of Assault Three,

where there was evidence to support the Mutual Affray instruction

and there was a reasonable possibility that error contributed to

the conviction in that case. In Kikuta, the defendant was

3 The jury was instructed on the charged offense of Assault One, as

well as the lesser included offenses of Assault Two and Assault Three.

2
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

convicted of Assault Three.4 125 Hawai#i at 81, 253 P.3d at 642. 

The defendant did not request an instruction on the Mutual Affray

defense, and none was given. Id. at 86, 253 P.3d at 647. The

Hawai#i Supreme Court explained that Mutual Affray was a

mitigating defense to Assault Three, stating:

HRS § 701–115(1) (1993) provides in relevant part that "[a]

defense is a fact or set of facts which negatives penal

liability." (Emphasis added.) HRS § 707–712(1) sets forth

the offense of Assault in the Third Degree. HRS § 707–712(2)

provides that Assault in the Third Degree will generally be

a "misdemeanor unless committed in a fight or scuffle

entered into by mutual consent," in which case, it is "a

petty misdemeanor." The commentary on HRS § 707–712

similarly explains that "Assault in the third degree ... is

treated as a misdemeanor[,]" but "is reduced to a petty

misdemeanor if the harm is inflicted in a fight or scuffle

entered into by mutual consent." (Emphasis added.) Thus, HRS

§ 707–712(2) "provide[s] a defense which mitigates that

crime from a misdemeanor to a petty misdemeanor when the

assault is committed during a fight or scuffle entered into

by mutual consent." State v. Coyle, 71 Haw. 165, 167, 785

P.2d 1320, 1320 (1990) (emphasis added). In other words,

mutual affray is a mitigating defense that reduces the

offense of Assault in the Third Degree to a petty

misdemeanor.

Id. at 95-96, 253 P.3d at 656-57 (underline emphasis added).

Under the circumstances in Kikuta, the Hawai#i Supreme Court held

that the erroneous failure to instruct the jury on the Mutual

Affray defense required that the judgment be vacated "because

there is a reasonable possibility that the error contributed to

[Kikuta's] conviction for misdemeanor assault in the third

degree." Id. at 97, 253 P.3d at 658 (internal quotation marks

and citation omitted) (emphasis added).

In a subsequent case, State v. Henley, 136 Hawai#i 471,

363 P.3d 319 (2015), the Hawai#i Supreme Court again held that

the Circuit Court plainly erred in failing to instruct the jury

on the Mutual Affray defense. In that case, Henley was charged

and convicted of Assault Three. Id. at 473, 476, 363 P.3d at

321, 324. The Circuit Court instructed the jury on the offense

of Assault Three, but did not give an instruction on the Mutual

4 In terms of the original charge, the opinion initially indicates

Kikuta was charged with Assault Two, but later indicates he was charged with

Assault Three. Id. at 81, 96, 253 P.3d at 642, 657. In any event, Kikuta was

ultimately convicted of Assault Three, to which the Mutual Affray defense is

applicable.

3
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

Affray defense. Id. at 476, 479, 363 P.3d at 324, 327. Given

the evidence in that case, the Hawai#i Supreme Court held that

there was evidence in the record that the complaining witness's

"injury was inflicted during the course of a fight or scuffle

entered into by mutual consent" and thus the Circuit Court should

have instructed the jury on the Mutual Affray defense. Id. at

480, 363 P.3d at 328. The Hawai#i Supreme Court further held:

we cannot say that the omission of the mutual affray

instruction was harmless beyond a reasonable doubt, as it is

possible, on this record, that given a choice between

convicting Henley on misdemeanor Third Degree Assault and

the mitigated offense of petty misdemeanor assault, the jury

could have convicted Henley on the latter.

Id. (citing Kikuta, 125 Hawai#i at 97, 253 P.3d at 658) (emphasis

added).

Here, as noted, Ngalu was charged with Assault One and

convicted of Assault Two. The Circuit Court instructed the jury

on Assault One, as well as the lesser included offenses of

Assault Two and Assault Three. The jury thus had the opportunity

to find Ngalu guilty on any of these three offenses, and it was

not an "all or nothing approach" where the jury was required to

convict Ngalu as charged or to acquit him. See State v. Flores,

131 Hawai#i 43, 56-57, 314 P.3d 120, 133-34 (2013) (overruling

State v. Haanio, 94 Hawai#i 405, 16 P.3d 246 (2001) "to the

extent that it holds the trial court's error in failing to give

included offense instructions is harmless if the defendant was

convicted of the charged offense or of a greater included

offense.") (emphasis added). Here, given the option of

convicting Ngalu of three separate offenses, the jury convicted

Ngalu of Assault Two. In light of the holdings in Kikuta and

Henley, I agree with the majority that because there is evidence

in the record to support a Mutual Affray defense instruction,

such an instruction should have been given. However, given that

the jury was instructed on the offense of Assault Three but Ngalu

was not convicted of Assault Three -- which is distinguishable

from Kikuta and Henley -- I conclude the failure to give the

Mutual Affray defense instruction was harmless error.

4
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

For these reasons, I respectfully concur in part, and

dissent in part. I would vacate the Circuit Court's Amended

Judgment; Conviction and Sentence based on the failure to

instruct the jury on the Defense of Others defense, but not based

on the failure to provide a Mutual Affray defense instruction.

/s/ Lisa M. Ginoza

5