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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

In the Interest of DM

SCWC-20-0000485

CERTIORARI FROM THE INTERMEDIATE COURT OF APPEALS

(CAAP-20-0000485; FC-J NO. 0101376)

MARCH 15, 2023

McKENNA, WILSON, AND EDDINS, JJ.;

AND NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY EDDINS, J.

A minor stabbed another minor. The State prosecuted, and 

the minor, DM, argued self-defense. The family court rejected 

his defense. It ruled the prosecution had proven attempted 

assault in the first degree beyond a reasonable doubt. 

In Hawaiʻi self-defense cases, the defendant’s subjective

belief drives an objective reasonableness standard. Factfinders

wear the defendant’s headset and experience the event from that 

Electronically Filed

Supreme Court

SCWC-20-0000485

15-MAR-2023

08:07 AM

Dkt. 11 OP
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reality. Then, from that perspective, the judge or jury 

evaluates the objective reasonableness of the defendant’s 

subjective belief that self-protective force was necessary. 

Here the family court inadequately assessed the 

circumstances from DM’s perspective. The court also misapplied 

key self-defense elements: the use of deadly force and the duty 

to retreat.

Substantial evidence does not support DM’s adjudication. 

We reverse. 

I.

The State filed a petition that alleged DM violated Hawaiʻi 

Revised Statutes (HRS) §§ 705-500 and 707-710, attempted assault 

in the first degree.1 After a bench trial, the family court 

adjudicated DM as charged.

DM contests the elemental facts. The factual circumstances

are mostly undisputed.

After midnight in June 2019, a large group of ‘Ewa Beach 

teenagers socialized at One‘ula Beach Park (Hau Bush) in ‘Ewa 

Beach. Most drank alcohol. The interior lights from open car 

and truck doors lit up the pitch-black area.

1 A person commits attempted assault in the first degree if the person

“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 assault in the 

first degree, which is committed if the person “intentionally or knowingly 

causes serious bodily injury to another person.” HRS §§ 705-500 (2014), 707-

710 (2014).
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DM and his cousin heard about the gathering on social 

media. The cousin drove to Hau Bush. DM did not know anyone 

there. Soon DM met some girls. As they talked, a shirtless 

teen (CW) obtruded. CW appeared “sketchy,” so DM suggested he 

leave. CW left.

But soon CW returned. He harassed a girl who was talking 

with DM. CW called her “bitch” and “slut.” DM stood up for

her. Then CW challenged DM to fight. DM said he didn’t want 

any problems and asked CW to leave. CW did not leave this time. 

CW asked DM where he was from. DM replied, Kalihi, and the two 

teens argued.

Then, things got physical. CW rushed DM. He punched DM

several times. DM fought back. CW’s friends and others jumped 

in, pulled CW off DM, and pushed DM away. CW’s friends

restrained and tried to reason with him. But CW didn’t listen; 

he broke from his friends’ grasp.

Again, CW rushed and punched DM. He tackled DM to the 

ground. As before, DM fought back. The two wrestled and 

punched each other. Other teens entered the fray. One of CW’s 

friends said he “grabbed” DM and “walked away with him.” CW’s 

friends pulled him off and away from DM. They held CW and tried 

to settle him down. For unknown reasons, other fights broke 

out. Hau Bush had turned “chaotic” and “rowdy.”
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The crowd closed in. DM did not see his cousin. To DM, 

“the whole ‘Ewa Beach” was there. DM darted to his cousin’s car. 

He got his work knife and faced the crowd, a few feet from the 

car. Only about ten to fifteen seconds had gone by since he had

been attacked. Holding his knife, DM warned: “Who like get 

stab?”

The crowd stopped or backed off, except CW. Despite his 

friends’ grip, he broke free, yet again. He launched into the 

air, tackling DM. DM never moved from his spot, next to the 

car.

CW landed atop DM. He unleashed a flurry of punches. DM 

held his arms over his face. Soon CW rolled off DM. DM had 

stabbed CW, once, in the abdomen. DM got up. He found his 

cousin and told him he had “accidentally” stabbed someone. The 

cousin quickly drove them away.

DM testified. He detailed the verbal and physical 

confrontations with CW. He described how CW rushed him the 

second time. They fought on the ground. Another teen punched 

DM in the head. DM described this attack as being “side-blinded 

from somebody else.” Then DM recounted, another person hit him:

he “got punch[ed] again. And I was looking. I was tripping out

. . . [c]hoke people was getting nuts.” DM was scared. “Like 

had a lot of people. I was getting whack. I was outnumbered.”
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DM dashed to his cousin’s car and grabbed his work knife; 

it had a three to four-inch blade. He hoped the crowd would 

back off. DM stayed put, near his cousin’s car. CW and other

teens advanced: “[h]ad more boys coming to rush me.” They were 

ten feet from him. DM warned: “Who like get stab?” DM did not 

want to hurt anybody. Instead, he wanted to “make them back 

away.” They slowed or backed away, but not CW.

CW yelled “I no give a fuck if you have the knife” and

propelled into the air, tackling DM. DM tried to “catch” or 

“wrap” CW. Then DM was on his back. Astride DM, CW threw 

several punches before rolling off him. DM had stabbed CW.

DM argued he lacked intent and acted in self-defense.

The family court adjudicated DM as a law violator. The 

State had proven the elements of attempted assault in the first 

degree. 

The court rejected DM’s defense. DM’s use of deadly force 

was not objectively reasonable. DM could not stab CW “under the 

circumstances.”2

2 Findings of Fact (FOF) #41 reads:

41. While [DM] may have subjectively believed that such 

deadly force was necessary, the Court does not find that 

the amount of force used was objectively reasonable under 

the circumstances of this case, beginning and culminating 

with getting the knife from the vehicle, coming out of the 

vehicle instead of staying in the vehicle, making a 

threatening statement and ultimately resulting in [DM] 

stabbing [CW].
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The court also found that DM’s use of deadly force 

comprised not just the stabbing, but also the steps leading up 

to it: “retrieving the weapon from the vehicle, coming out of 

the vehicle with the weapon, making the threatening statement 

and ultimately using the weapon does constitute deadly force.”3

Further, the court found that DM “could have waited in the 

vehicle or left the area with complete safety.”4

DM appealed. DM challenges the court’s self-defenserelated findings and conclusions. And citing State v. Lubong, 

77 Hawaiʻi 429, 433, 886 P.2d 766, 770 (App. 1994), DM argues the 

court did not properly assess the circumstances from his 

“shoes.” 

3 FOF #42 reads:

42. The mere brandishing and/or threat to cause death or 

serious bodily injury by the production of a weapon so long 

as the actor’s intent is limited to creating an 

apprehension does not in and of itself constitute deadly 

force. However, retrieving the weapon from the vehicle, 

coming out of the vehicle with the weapon, making the 

threatening statement and ultimately using the weapon does 

constitute deadly force.

4 FOF #37 reads:

37. [DM] could have gone to the vehicle and instead of 

getting the knife, could have extricated himself from the 

situation if he stayed in the vehicle or he could have left 

the area but chose not to do so.

Conclusions of Law (COL) #12 reads, in part:

12. [DM] left the area to obtain a weapon, the knife, from 

a vehicle and returned and stated “who like get stabbed.”

The confrontation was broken up, but [DM] chose to return 

with the weapon, ultimately stabbing [CW]. [DM] could have 

waited in the vehicle or left the area with complete 

safety.
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The State counters that the record supports the court’s 

ruling. It argues the family court properly evaluated the 

evidence and rejected DM’s self-defense claim.

The Intermediate Court of Appeals (ICA) affirmed the family 

court in a memorandum opinion with a dissent. The ICA concluded 

the court did not err, and the State had presented sufficient

evidence to establish that DM intended to stab CW without lawful 

justification. 

II.

We conclude the family court wrongly rejected DM’s defense. 

The court inadequately assessed DM’s conduct from his 

perspective. 

The family court also misapplied key self-defense elements. 

Because DM’s actions before he stabbed CW did not constitute 

deadly force, the court erred. Next, the court misapplied the 

duty to retreat. Third, there were not separate fights as the 

court found, but rather one violent event between DM and CW. 

Lastly, the court overlooked evidence about DM defending himself 

against multiple attackers. 

A.

The court temporally bumped up the analysis of two central

self-defense elements: the use of deadly force and the duty to 

retreat. The court’s approach, we believe, skewed its 

subjective and objective analysis.
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DM did not use deadly force before he stabbed CW. Thus, 

the court erred in FOF #42 when it ruled that “retrieving the 

weapon from the vehicle, coming out of the vehicle with the 

weapon, making the threatening statement and ultimately using 

the weapon does constitute deadly force.” True, “using the 

weapon” does constitute deadly force. But DM’s other actions do

not constitute deadly force.

The use of deadly force, not actions before a person uses 

deadly force, constitutes deadly force. Deadly force means 

“force which the actor uses with the intent of causing or which 

the actor knows to create a substantial risk of causing death or 

serious bodily harm.” HRS § 703-300 (2014) (emphasis added). 

DM used deadly force at the moment he stabbed CW. Not before. 

See State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990)

(focusing on the defendant’s perspective “at the time [they] 

tried to defend [themselves]” with deadly force).

DM’s pre-stab conduct did not constitute deadly force for 

another reason. CW attacked DM. DM did not “provoke[] the use 

of force against him.”5 So, under the circumstances, DM could 

5 No one claimed DM provoked the use of force against himself. HRS 

§ 703-304(5)(a) (2014) reads:

The use of deadly force is not justifiable under this 

section if:

(a) The actor, with the intent of causing death or serious 

bodily injury, provoked the use of force against himself in 

the same encounter[.]
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produce his knife and threaten the crowd without those actions 

constituting deadly force. “A threat to cause death or serious 

bodily injury, by the production of a weapon or otherwise, so 

long as the actor’s intent is limited to creating an 

apprehension that the actor will use deadly force if necessary, 

does not constitute deadly force.” HRS § 703-300. 

The evidence showed DM intended to create apprehension that 

if necessary, he would use deadly force. CW and others had 

attacked DM and a crowd was “coming to rush” him. DM felt 

outnumbered. He did not want to hurt anybody. He just wanted 

to “make them back away.” DM stayed in the same spot, near his 

cousin’s car. And his words: “Who like get stab?” expressed an 

intent limited to creating an apprehension that he would use 

deadly force, if necessary.

Contrary to the court’s finding, there was no deadly force 

when DM got his knife and cautioned the crowd. 

B.

Turning to the duty to retreat, the court misapplied the 

law there, too. 

Hawaiʻi law does not require a person to retreat before 

using deadly force. That is, unless the person “knows that 

[they] can avoid the necessity of using such force with complete 
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safety by retreating.” HRS § 703-304(5)(b) (emphases added).6 

It’s a purely subjective inquiry.

The court gave no consideration to whether DM knew he could 

retreat with complete safety. It felt DM should have or could 

have handled things differently; by, for instance, sitting in 

his cousin’s car, a move DM feels would have made him “a sitting 

duck.”

There was no evidence to support the court’s recommended 

pathways to compete safety. And there was no evidence presented 

(or considered by the court) regarding whether DM subjectively 

knew he could sit in the car or leave the unfamiliar, lightless 

area with complete safety. See State v. Augustin, 101 Hawaiʻi 

127, 128, 63 P.3d 1097, 1098 (2002) (explaining that a defendant 

only has knowledge of circumstances when the defendant is 

“aware” of the circumstances).

The court discounted duty to retreat’s purely subjective 

nature. The duty to retreat depends on the actor’s perspective. 

The factfinder considers what the defendant knows at the time. 

“The use of deadly force is not justifiable under this section 

if . . . [t]he actor knows that [they] can avoid the necessity 

of using such force with complete safety by retreating . . .” 

6 HRS § 703-304(5) provides: “The use of deadly force is not justifiable 

under this section if . . . [t]he actor knows that [they] can avoid the 

necessity of using such force with complete safety by retreating . . . .”
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HRS § 703-304(5) (emphasis added); State v. Mark, 123 Hawaiʻi 

205, 226, 231 P.3d 478, 499 (2010) (applying the subjective 

inquiry to the duty to retreat: “[n]othing in this testimony 

indicates that Petitioner knew that he could avoid the necessity 

of using deadly force by retreating,” and “Petitioner did not 

testify as to any knowledge he may have had in regard to 

avoiding the necessity of using force.”). 

Also, the family court prematurely applied the duty to 

retreat analysis. DM’s acts up until the stab did not 

constitute deadly force. There was no deadly force used when DM

grabbed the knife or when he produced it to scare the crowd. DM 

didn’t have a duty to retreat at those times.7 The temporal 

context for the retreat analysis occurs at the moment deadly 

force is used or becomes imminent. See Matter of Y.K., 663 

N.E.2d 313 (N.Y. 1996) (explaining the duty to retreat “d[oes]

not arise until the point at which deadly physical force was 

used or imminent.”).

Contrary to the court’s finding, the duty to retreat kicked 

in at the moment CW broke free from his friends and rushed DM. 

Even if DM could have safely left before that time, he had no 

7 There is no duty to retreat when force is used. But if a person uses 

deadly force, there is a duty to retreat. To the extent the family court 

treated DM’s “threat” – “Who like get stab?” - as “force” to boost its use 

of “deadly force” finding, it also erred. “Force” means any “bodily 

impact . . . or the threat thereof.” HRS § 703-300.
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legal duty to do so - he had not yet used deadly force. HRS 

§§ 703-300, 703-304(5)(b). Nothing in the record shows that -

at the time CW attacked - DM knew he could retreat with complete 

safety without using deadly force.

C.

The family court failed to adequately assess and credit 

DM’s perspective in another key way. The court split the event 

into separate fights.8 But there were not separate fights 

between DM and CW. Rather, there was one continuous violent 

event between DM and CW. The court’s multiple-fights finding is 

clearly erroneous. See In re Doe, 95 Hawaiʻi 183, 190, 20 P.3d 

616, 623 (2001) (principle that a finding by the family court 

“is clearly erroneous when (1) the record lacks substantial 

evidence to support the finding, or (2) despite substantial 

8 The court’s multiple fights findings include COL #12 and FOF numbers 

23, 29, 38, 39:

23. After the fight was broken up, it was at that point 

that [DM] went over to a vehicle, the Nissan Altima that 

his cousin had driven him to Hau Bush in. [DM] retrieved a 

knife that he used for work. Upon retrieving the knife, 

[DM] exited the vehicle, and yelled out “who like get 

stabbed.”

29. After the second altercation, when [DM] extricated 

himself from the situation, [DM] went to the vehicle, 

obtained a knife from the vehicle, came back out of the 

vehicle with the knife, and stated “who like get stabbed.” 

At that point, [CW] charged at [DM].

38. [DM] was entitled to utilize self-defense in the first 

altercation.

39. When the second altercation occurred, [DM] was also 

entitled to use self-defense, but only such force that was 

reasonably necessary under the circumstances.
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evidence in support of the finding, the appellate court is 

nonetheless left with a definite and firm conviction that a 

mistake has been made.”).

The court believed the fight between CW and DM mostly 

ended, restarted, then ended, before DM stabbed CW in yet 

another fight. Fights, though, are unpredictable. They often 

rapidly unfold and evolve. Lulls happen. Danger recedes and 

surges. A fight’s end is sometimes murky.

Only about 10-15 seconds passed between DM rising from the 

ground and facing the crowd with his knife. Before then, CW had 

escaped his friends’ hold and attacked DM. Others also attacked 

him, DM believed. And before that, CW attacked DM - after DM 

aided a girl who CW had vulgarly harassed. 

To DM, there were no rounds, no multiple fights, just one 

continuous event. The family court did not adequately consider 

DM’s perspective.

D.

The court disregarded DM’s perspective relating to another 

self-defense feature. DM believed he faced peril from multiple 

attackers. Since DM used deadly force, which the court deemed 

objectively unreasonable, this mattered. See State v. DeLeon, 

143 Hawaiʻi 208, 218, 426 P.3d 432, 442 (2018) (stating that a 

person who faces other attackers presents “an exception to the 
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general rule that a claim of self-defense fails when deadly 

force is used to stop a simple assault.”). 

DM believed that others besides CW had attacked him. As he 

fought with CW, someone else punched him in the head. Then, 

another person landed a punch. DM was getting “whacked.” 9 This 

happened right before DM darted to his cousin’s nearby car.

The family court ignored, or at least severely undervalued,

DM’s experiences and point of view at the moment he used deadly 

force. CW had attacked DM more than once. Others also 

assaulted him.10 People were rowdy, going nuts in the pitchblack area. DM wasn’t from there. He felt outnumbered. DM

thought the ‘Ewa Beach crowd was about to rush him. 

The court failed to consider DM’s belief that deadly force 

was necessary to protect himself from serious physical harm by 

9 The family court did not find that DM’s testimony in this respect 

lacked veracity:

36. [DM] claimed he was assaulted not only by [CW] but that 

somebody else had struck him, which then caused him to 

extricate himself from the situation and go to the vehicle.

The court made one finding that DM’s testimony was not credible:

27. [DM] testified that the stab was an accident, and that 

he was trying to hug and/or catch [CW]. The Court does not 

find that to be credible testimony. The Court finds that 

[DM] did in fact stab, and did intend to stab the 

complaining witness with the knife that was produced.

10 There was evidence to support DM’s fear from other attackers. CW’s 

friend got physical with DM. He testified that he “grabbed” DM and “walked 

away with him.”
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more than one attacker.11 DeLeon, 143 Hawaiʻi at 218, 426 P.3d at 

442.

III.

A subjective and objective inquiry guides Hawaiʻi’s selfdefense law. In self-D cases, the factfinder’s decision pivots 

on the objective reasonableness of the defendant’s subjective 

belief about the need to use force or deadly force.12 State v. 

Culkin, 97 Hawaiʻi 206, 217, 35 P.3d 233, 244 (2001). 

The family court concluded that DM “may have subjectively 

believed” deadly force was necessary. Then the court skipped to 

the objective analysis:

41. While [DM] may have subjectively believed that such 

deadly force was necessary, the Court does not find that 

the amount of force used was objectively reasonable under 

the circumstances of this case, beginning and culminating 

with getting the knife from the vehicle, coming out of the 

vehicle instead of staying in the vehicle, making a

threatening statement and ultimately resulting in [DM] 

stabbing [CW].

We conclude that the family court inadequately considered 

DM’s perspective. It found that DM’s subjective belief was 

objectively unreasonable without appraising DM’s point of view. 

11 Defendants may use deadly force if they believe it is necessary to 

protect themselves against death or serious bodily injury. HRS § 703-304(2). 

“‘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.” HRS 

§ 707-700 (2014 & Supp. 2019).

12 This case involves deadly force. DM concedes he used deadly force when 

he stabbed CW with a knife. Deadly force means “force which the actor uses 

with the intent of causing or which the actor knows to create a substantial 

risk of causing death or serious bodily harm.” HRS § 703-300.
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The court shortchanged DM’s perspective. And this tilted its

objective analysis. 

HRS § 703–304(2) describes the subjective part. The use of 

deadly force in self-protection is justified “if the actor 

believes that deadly force is necessary to protect [themselves] 

against death, serious bodily injury, kidnapping, rape, or 

forcible sodomy.”13 

HRS § 703-300 brings the objective part. It defines 

“believes” as “reasonably believes.” 

Once the type of force is determined, a two-step inquiry 

happens. In deadly force cases, the factfinder first decides 

whether the defendant subjectively believed that deadly force 

was necessary. Then, if so, the judge or jury decides whether 

that belief was objectively reasonable. But how?

The defendant’s perspective provides the evidentiary scope 

for the objective analysis. The defendant’s sensory and predeadly force experiences control the factfinder’s objective 

evaluation. See Pemberton, 71 Haw. at 477, 796 P.2d at 85 

13 Compare HRS § 703-304(1) regarding the use of non-deadly force (“the 

use of force . . . is justifiable when the actor believes that such force is 

immediately necessary for the purpose of protecting [themselves] against the 

use of unlawful force by the other person on the present occasion”) (emphasis 

added) with HRS § 703-304(2) regarding deadly force (“the use of deadly force 

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

protect [themselves] against death, serious bodily injury, [etc.]”) (emphasis 

added).

Hawaiʻi Standard Jury Instructions, Criminal (HAWJIC) 7.01A misstates 

HRS § 703-304(2). For deadly force cases, it adds the adverb “immediately.” 
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(principal that “the standard for judging the reasonableness of 

a defendant’s belief for the need to use deadly force is 

determined from the point of view of a reasonable person in the 

Defendant’s position under the circumstances as [they] believed 

them to be.”); Lubong, 77 Hawaiʻi at 433, 886 P.2d at 770

(explaining that “[i]n evaluating the reasonableness of a 

defendant’s belief that deadly force was necessary for selfprotection, the evidence must be assessed from the standpoint of 

a reasonable person in the defendant’s position under the 

circumstances as the defendant subjectively believed them to be 

at the time [they] tried to defend [themselves].”).

The court bypassed DM’s perspective of the event. There 

were not separate, divisible fights, as the court believed. And 

CW did not pose the only danger to DM. Also, temporally, the 

court incorrectly advanced DM’s use of deadly force, as well as 

DM’s duty to retreat. Further, the court overlooked DM’s 

subjective belief that he could not retreat with complete 

safety. These analytical flaws, we conclude, improperly 

impacted the court’s objective analysis.

A defendant’s circumstances - what they think, see, hear, 

touch, smell, and (sometimes even) taste - frame the objective 

inquiry. Because the defendant’s subjective belief shapes the 

objective standard, the judge or jury wears the defendant’s 

headset and enters the defendant’s reality. See Lubong, 77 
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Hawaiʻi at 433, 886 P.2d at 770 (instructing that “[t]he 

factfinder is required to place itself in the shoes of the 

defendant, determine the point of view which the defendant had 

at the time of the incident, and view the conduct of the victim 

with all its pertinent sidelights as the defendant was warranted 

in viewing it.”) (Cleaned up.)

We are unconvinced that the family court satisfactorily 

assessed DM’s perspective. CW attacked DM, more than once. 

Someone else punched DM in the head. And DM thought another

teen also hit him. The chaotic crowd in the unfamiliar, 

darkened area scared DM. They were nuts. DM believed the fight 

with CW had dangerously ripened. He thought others endangered 

him; DM felt outnumbered. “The whole ‘Ewa Beach” was there.

DM got the knife to make the crowd withdraw. Yet, after DM 

retrieved the knife, CW and others still advanced. DM recalled: 

“had more boys coming to rush me.” They were close, ten feet 

away. DM stayed put. Only seconds had passed since CW and 

others had struck him while he was on the ground. DM warned: 

“Who like get stab?” He didn’t want to hurt anybody, he said. 

DM just wanted to “make them back away.” It didn’t work. CW 

rushed, tackled, and punched DM. DM stabbed him, once.

We conclude that the family court inadequately assessed the 

circumstances from DM’s perspective. The court’s slight

treatment of DM’s subjective beliefs and the court’s errors 
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relating to the use of deadly force and the duty to retreat, 

marred the court’s objective analysis. 

Under the circumstances of this case, we find that there 

was not substantial evidence presented to support the family 

court’s conclusion that the State proved beyond a reasonable 

doubt that DM’s use of deadly force was unjustified.14

IV.

We vacate the ICA’s Judgment on Appeal. We reverse the 

Family Court of the First Circuit’s Order Re: Motion for 

Reconsideration of Order Adjudicating DM of Attempted Assault in 

the First Degree and Restitution Filed October 29, 2019 and the 

Findings of Fact and Conclusions of Law entered by the family 

court on July 24, 2020.

Phyllis J. Hironaka

for petitioner

Loren Thomas

for respondent

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

14 As we explained in State v. Martinez:

We have long held that evidence adduced in the trial court 

must be considered in the strongest light for the 

prosecution when the appellate court passes on the legal 

sufficiency of such evidence to support a conviction; the 

same standard applies whether the case was before a judge 

or a jury. The test on appeal is not whether guilt is 

established beyond a reasonable doubt, but whether there 

was substantial evidence to support the conclusion of the 

trier of fact.

101 Hawaiʻi 332, 338, 68 P.3d 606, 612 (2003) (cleaned up).