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CAAP-11-0001075
 

IN THE INTERMEDIATE COURT OF APPEALS
 

OF THE STATE OF HAWAI'I 

STATE OF HAWAI'I, Plaintiff-Appellee,

v.
 SHANNON MANO, Defendant-Appellant.
 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
 (CR NO. 10-1-1356)
 

SUMMARY DISPOSITION ORDER
 (By: Nakamura, C.J., and Leonard and Ginoza, JJ.)
 

Defendant-Appellant Shannon Mano (Mano) was charged
 

with first-degree terroristic threatening for committing
 

terroristic threatening with the use of a dangerous weapon, in
 

violation of Hawaii Revised Statutes (HRS) § 707-716(1)(e) (Supp.
 

2010).1 A jury found Mano guilty as charged. The Circuit Court
 

1 At the time relevant to this case, HRS § 707-716 provided:
 

(1) A person commits the offense of terroristic threatening

in the first degree if the person commits terroristic threatening:
 

. . .
 

(e) With the use of a dangerous instrument[.]
 

In addition, at the time relevant to this case, HRS § 707-715 (1993) defined

the offense of terroristic threatening, in pertinent part, as follows: 

A person commits the offense of terroristic threatening if

the person threatens, by word or conduct, to cause bodily injury

to another person or serious damage to property of another or to

commit a felony:
 

(1)	 With the intent to terrorize, or in reckless disregard

(continued...)
 
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2 of the First Circuit (Circuit Court) sentenced Mano to probation

for five years, subject to the condition that she serve 43 days
 

in jail, with credit for time already served.

 I.
 

Mano and the complaining witness (CW) had been in a
 

romantic relationship and had been living together in an
 

apartment along with two other roommates. On August 11, 2010,
 

Mano and the CW had mutually agreed to end their relationship. 

The CW planned to stay at the apartment for another week before
 

he returned to the mainland. However, in the early morning on
 

August 12, 2010, Mano and the CW got into an argument, with Mano
 

demanding that the CW leave the apartment and the CW refusing to
 

do so. 

According to the CW, Mano was drunk, and she grabbed a
 

"big butcher knife," pointed the knife at the CW, and threatened
 

to stab the CW if he did not leave. Mano made a downward jab
 

with the knife at the CW and kept moving toward him. The CW
 

grabbed Mano's hand, wrestled the knife from her, and threw the
 

knife in the bathroom.
 

A roommate (Roommate) who shared the apartment with
 

Mano and the CW called the police. Roommate testified that she
 

heard Mano say, "I'm going to stab you, get the fuck out of the
 

house." Roommate initially stayed in her room because she was
 

afraid. When Roommate came out of her room, she observed that
 

Mano appeared to be intoxicated. Roommate testified that the CW
 

was generally very passive and not easy to anger, whereas Mano
 

seemed nice some of the time but became violent when she had been
 

drinking.
 

II.
 

Mano appeals from the Judgment entered by the Circuit
 

Court on November 21, 2011. On appeal, Mano argues that: (1) 

1(...continued)

of the risk of terrorizing, another person[.]
 

2The Honorable Edward H. Kubo, Jr., presided.
 

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the Circuit Court erred in permitting Mano to only introduce
 

evidence of four incidents of the CW's alleged prior acts of
 

violence in support of her claim of self-defense, and precluding
 

Mano from introducing evidence of other alleged incidents; (2)
 

the Circuit Court committed plain error in instructing the jury
 

on the law of self-defense; (3) the prosecutor's remarks in
 

closing argument constituted prosecutorial misconduct; and (4)
 

her trial counsel failed to provide effective assistance of
 

counsel. As explained below, we affirm the Circuit Court's
 

Judgment.
 

III.
 

We resolve Mano's arguments on appeal as follows:
 

A.
 

1.
 

We conclude that the Circuit Court did not abuse its
 

discretion in limiting Mano to introducing four incidents of the
 

CW's alleged prior acts of violence in support of Mano's claim of
 

self-defense. Prior to trial, Mano filed a motion in limine
 

seeking a pre-trial determination by the Circuit Court regarding
 

the admissibility of (1) seven prior acts of violence allegedly
 

committed by the CW against Mano; and (2) Mano's understanding of
 

the CW's criminal history for felony assault in the State of
 

Washington. The Circuit Court ruled that the seven proffered
 

prior acts of violence were admissible on the issues of firstaggressor and self-defense, but that the introduction of all
 

seven incidents would be cumulative. The Circuit Court therefore
 

ruled that Mano would be permitted to introduce four of the seven
 

alleged incidents, with Mano determining which four she wanted to
 

introduce. 

With respect to Mano's understanding of the CW's
 

criminal history for felony assault, Mano conceded that she did
 

not have personal knowledge of the CW's alleged criminal history. 

Instead, Mano informed the Circuit Court that her understanding
 

of the CW's criminal history was based on "things that she
 

learned later on." The Circuit Court ruled that based on its
 

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permitting Mano to introduce evidence of four incidents of
 

violence committed by the CW against Mano, it viewed the evidence
 

of the CW's alleged criminal history as inadmissible hearsay. 

The Circuit Court therefore denied Mano's request to introduce
 

the criminal history evidence. The Circuit Court made clear that
 

its in limine rulings were without prejudice to the parties
 

moving for reconsideration during trial "[i]n the event that
 

[they] have information during trial that opens the door to the
 

proper introduction of such evidence[.]"
 

2.
 

Evidence of the CW's prior acts of violence were 

relevant for two purposes: (1) to show the reasonableness of 

Mano's apprehension of immediate danger and thereby support her 

use of force in self-defense; and (2) to show that the CW was the 

first aggressor. See Hawaii Rules of Evidence (HRE) Rule 404 

(Supp. 2013); State v. Lui, 61 Hawai'i 328, 329-30, 603 P.2d 151, 

154 (1979); State v. Basque, 66 Haw. 510, 513-15, 666 P.2d 599, 

602-03 (1983); State v. Adam, 97 Hawai'i 413, 418-19, 38 P.3d 

581, 586-87 (App. 2001). Mano's argument on appeal is limited to 

the first purpose. Mano contends that the evidence excluded by 

the Circuit Court was relevant to showing her state of mind 

regarding fear of imminent harm and therefore was critical to her 

claim of self-defense. Mano argues that because evidence of her 

state of mind was critical to her claim of self-defense, the 

Circuit Court erred by only permitting her to introduce evidence 

of four of the CW's prior acts of violence and not allowing her 

to introduce all the evidence on this issue that she sought to 

introduce. We disagree. 

The Circuit Court excluded evidence of three (of seven)
 

prior incidents of violence and Mano's understanding of the CW's
 

criminal history for felony assault. While the excluded evidence
 

was relevant to Mano's state of mind, we conclude that the
 

Circuit Court did not abuse its discretion in ruling that such
 

evidence could not be introduced. HRE Rule 403 (1993) provides
 

that "[a]lthough relevant, evidence may be excluded if its
 

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probative value is substantially outweighed by the danger of
 

unfair prejudice, confusion of the issues, or misleading the
 

jury, or by considerations of undue delay, waste of time, or
 

needless presentation of cumulative evidence." (Emphasis added.) 

The Circuit Court ruled that evidence beyond four of the prior
 

incidents of alleged violence by the CW against Mano would be
 

cumulative, and it limited Mano to introducing four prior
 

incidents of her choice. 

None of the seven prior incidents of alleged violence
 

by the CW against Mano apparently resulted in arrests or
 

convictions, and the circumstances surrounding these incidents
 

were subject to dispute. At trial, the CW disputed Mano's
 

version of the four incidents Mano chose to introduce, with the
 

CW denying Mano's claims that he had engaged in violent acts or
 

asserting that certain of his acts were necessary to defend
 

himself against violence perpetrated by Mano. The four incidents
 

Mano introduced therefore resulted in mini-trials, with the CW
 

and Mano providing conflicting testimony about what had
 

transpired and who was to blame. The Circuit Court allowed Mano
 

to select the four incidents most favorable to her case, and
 

there is no basis for believing that the nature of the three
 

excluded incidents was much different.
 

With respect to evidence of Mano's understanding of the
 

CW's criminal history for felony assault, Mano acknowledged that
 

she did not have personal knowledge of the CW's alleged criminal
 

history and that her understanding was based on "things that she
 

learned later on." Mano did not proffer any details of what her
 

understanding of the CW's criminal history for felony assault
 

was, how she acquired this understanding, or what her proposed
 

testimony would have been. This hampers our ability on appeal to
 

evaluate her claim of error regarding the exclusion of her
 

understanding of the CW's criminal history. In any event, it
 

would appear that evidence of specific acts of violence committed
 

by the CW directly against Mano would be more probative of Mano's
 

state of mind in apprehending the immediate danger posed by the
 

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CW than her understanding of a criminal history of felony
 

assault.3
 

Under these circumstances, we cannot say that the
 

Circuit Court abused its discretion in limiting Mano to
 

introducing four incidents of the CW's alleged prior acts of
 

violence in support of her claim of self-defense.
 

B.
 

Mano did not object at trial to the Circuit Court's
 

instruction on self-defense. However, on appeal, she argues that
 

the Circuit Court committed plain error because its instructions
 

on self-defense were prejudicially confusing and misleading. We
 

disagree.
 

The Circuit Court gave two instructions on selfdefense. The first instruction was directed at self-defense when
 

deadly force is used (Deadly Force Instruction) and the second
 

was directed at self-defense when deadly force is not used (NonDeadly Force Instruction). Mano contends that the self-defense
 

instructions were prejudicially confusing and misleading because:
 

(1) the Deadly Force Instruction did not instruct the jury to 

apply the Non-Deadly Force Instruction if the jury found that 

Mano had not used deadly force; (2) it was not clear from the 

instructions when the jury should apply the Deadly Force 

Instruction versus the Non-Deadly Force Instruction; and (3) the 

Circuit Court used Hawai'i Pattern Jury Instruction Criminal 

(HAWJIC) 7.01 on self-defense, which was repealed and replaced by 

HAWJIC 7.01A and 7.01B on April 4, 2011, instead of the more 

current HAWJIC 7.01A on the use of deadly force in self-defense. 

Mano's arguments are without merit. Reading the
 

instructions as a whole, it is clear that the Deadly Force
 

3Mano does not challenge the Circuit Court's exclusion of the criminal

history evidence on the theory that the evidence was necessary to show that

the CW was the first aggressor. We note that Mano acknowledged that she

lacked personal knowledge of the CW's alleged criminal history for felony

assault. It is therefore unclear how she could introduce substantive evidence
 

to establish the CW's criminal history for the purpose of showing that he was

the first aggressor. 

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Instruction only applied if the jury found that Mano had engaged 

in the use of deadly force and that the Non-Deadly Force 

Instruction applied if the jury found that Mano had not engaged 

in the use of deadly force. The self-defense instructions given 

by the Circuit Court were based on HAWJIC 7.01, which was 

repealed in 2011. The Hawai'i Supreme Court has held that the 

repealed HAWJIC 7.01 is "fully consonant with the controlling 

statutory and case law of this state." State v. DeLeon, 131 

Hawai'i 463, 487, 319 P.3d 382, 406 (quoting State v. Augustin, 

101 Hawai'i 127, 127, 63 P.3d 1097, 1097 (2002)).4 We conclude 

that Mano failed to rebut the "presumption that unobjected-to 

jury instructions are correct" or to show that the self-defense 

instructions were "prejudicially insufficient, erroneous, 

inconsistent, or misleading." State v. Nichols, 111 Hawai'i 327, 

334, 337 n.6, 141 P.3d 974, 981, 984 n.6 (2006). 

C.
 

Mano argues that the prosecutor's remarks in closing
 

argument constituted prosecutorial misconduct. Specifically,
 

Mano argues that on three occasions, the prosecutor asked the
 

jurors either to put themselves in the shoes of the CW or Mano,
 

in making arguments to the jurors concerning the effect and
 

reasonableness of the actions of the CW and Mano. 

Because Mano did not object to the prosecutor's remarks 

at trial, "we must, as a threshold matter, determine whether the 

alleged misconduct constituted plain error that affected [Mano's] 

substantial rights." State v. Iuli, 101 Hawai'i 196, 208, 65 

P.3d 143, 155 (2003). Although inartfully phrased, we conclude 

that the prosecutor's remarks in closing argument did not affect 

Mano's substantial rights. The prosecutor's remarks were made in 

4Mano argues that the Deadly Force Instruction was erroneous because it

failed to include the language from HRS § 703-304(3) (1993) that "a person

employing protective force may estimate the necessity thereof under the

circumstances as [he/she] believes them to be[.]" However, the supreme court

in DeLeon concluded that a deadly force instruction similar to that used in

this case, which also excluded the quoted language from HRS § 703-304(3), was

not erroneous. DeLeon, 131 Hawai'i at 475-76, 486-87, 319 P.3d at 394-95,

405-06. 

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the context of arguing to the jury that the evidence presented at
 

trial showed that Mano's act of brandishing the knife was
 

objectively capable of causing fear; that the CW's reaction to
 

Mano's brandishing the knife was reasonable; and that Mano did
 

not reasonably believe that the use of force was immediately
 

necessary. Given the context of the prosecutor's remarks, they
 

"did not appeal improperly to the jurors' emotions or exhort them
 

to decide the case on anything other than the evidence presented
 

to them." State v. Bell, 931 A.2d 198, 215 (2007). In addition,
 

the Circuit Court instructed the jury that statements or remarks
 

by counsel are not evidence and that the jury should not be
 

influenced by pity for, or passion or prejudice against, the
 

defendant in deciding the case. The failure of Mano's counsel to
 

object to the prosecutor's remarks also indicates that trial
 

counsel did not view the prosecutor's remarks as improper. Under
 

these circumstances, we conclude that the prosecutor's remarks
 

did not affect Mano's substantial rights. 

D.
 

Mano contends that her trial counsel provided
 

ineffective assistance by failing to: (1) seek to introduce
 

evidence of the CW's violent character that was listed in Mano's
 

notice of intent to use HRE Rule 404 evidence (Notice of Intent),
 

but not in her motion in limine; (2) object to the Circuit
 

Court's in limine ruling, which excluded evidence of three of the
 

seven prior incidents of alleged violent acts by the CW against
 

Mano and Mano's understanding of the CW's criminal history of
 

felony assault; (3) object to the self-defense instructions; and
 

(4) object to the prosecutor's remarks in closing argument.
 

With respect to Mano's claims (2) through (4), our 

previous analysis shows that they are without merit. For the 

reasons previously stated, the asserted failures to object by 

trial counsel did not result in the withdrawal or substantial 

impairment of a potentially meritorious defense and therefore 

cannot support a claim of ineffective assistance of counsel. See 

State v. Richie, 88 Hawai'i 19, 39, 960 P.2d 1227, 1247 (1998). 

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The background with respect to Mano's first claim is
 

that prior to filing her motion in limine, Mano filed a Notice of
 

Intent. In her motion in limine, Mano addressed much of the same
 

evidence identified in the Notice of Intent. The motion in
 

limine, however, did not include the following evidence listed in
 

Mano's Notice of Intent: evidence of Mano's knowledge of (1)
 

"[the CW's] character for violence, including witnessing multiple
 

bar fights involving [the CW]"; and (2) "[the CW's] possessing
 

and brandishing weapons, including a compact straight razor." 

After ruling on Mano's motion in limine, the Circuit Court stated
 

its belief that Mano's motion in limine covered the same matters
 

as the Notice of Intent, but offered to address anything specific
 

Mano wished to go over concerning the Notice of Intent. In
 

response, Mano's counsel agreed with the Circuit Court that it
 

had addressed everything.
 

On appeal, Mano contends that her trial counsel was 

ineffective for failing to seek the admission of the two items of 

evidence listed in her Notice of Intent, but not her motion in 

limine. The existing record, however, does not contain a proffer 

that provides relevant details concerning these two items of 

evidence or the means by which Mano would be able to introduce 

them. The record also does not contain any statement by Mano's 

trial counsel concerning the reason why he did not pursue 

admission of this evidence, including whether his actions were 

based on strategic considerations. We therefore conclude that 

based on the existing record, Mano has failed to meet her burden 

of establishing that her trial counsel provided ineffective 

assistance in failing to seek admission of these two items of 

evidence. See Richie, 88 Hawai'i at 39, 960 P.2d at 1247. Our 

decision is without prejudice to Mano asserting this claim on a 

more fully developed record. See State v. Silva, 75 Haw. 419, 

439, 864 P.2d 583, 592-93 (1993). 

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IV.
 

We affirm the Circuit Court's Judgment.
 

DATED: Honolulu, Hawai'i, June 30, 2014. 

On the briefs: 

Phyllis J. Hironaka

Deputy Public Defender

for Defendant-Appellant 

Chief Judge 

Brian R. Vincent 

Deputy Prosecuting Attorney

City and County of Honolulu

for Plaintiff-Appellee 

Associate Judge 

Associate Judge 

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