State v. Achuo ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JAN-2021
07:50 AM
Dkt. 180 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
AJ ACHUO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant AJ Achuo (Achuo) appeals from the
Judgment of Conviction and Sentence (Judgment), entered on May
22, 2019, in the Circuit Court of the First Circuit (Circuit
Court).1/ After a jury trial, Achuo was convicted of Murder in
the Second Degree, in violation of HRS § 707-701.5,2/ and
sentenced under HRS § 706-656.3/
1/
The Honorable Rowena A. Somerville presided.
2/
HRS § 707-701.5 (2014) provides, in relevant part:
(1) Except as provided in section 707-701, a person
commits the offense of murder in the second degree if the
person intentionally or knowingly causes the death of
another person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
in section 706-656.
3/
HRS § 706-656 (2014) provides, in relevant part:
(2) . . . [P]ersons convicted of second degree murder
and attempted second degree murder shall be sentenced to
life imprisonment with possibility of parole. The minimum
length of imprisonment shall be determined by the Hawaii
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On appeal, Achuo contends that: (1) there was no
substantial evidence to support his conviction because the State
did not prove beyond a reasonable doubt that his use of deadly
force was not justified; and (2) the Circuit Court's instruction
to the jury on self-defense was prejudicially erroneous and
misleading.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
Judgment for the reasons set forth below. We examine Achuo's
second contention regarding jury instructions before discussing
his first contention regarding the sufficiency of the evidence.
(1) Achuo argues that the "Circuit Court's instruction
on the use of deadly force in self-protection was prejudicially
erroneous and misleading."
We first note that Achuo failed to object to the
challenged jury instruction at trial. He must therefore
demonstrate instructional error. See State v. DeLeon, 131
Hawai#i 463, 479, 319 P.3d 382, 398 (2014); State v. Nichols, 111
Hawai#i 327, 141 P.3d 974 (2006). The supreme court has held
that "[w]hen 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." Nichols,
111 Hawai#i at 334, 141 P.3d at 981.
Here, the jury instruction on self-defense stated, in
relevant part:
Self-defense is a defense to the charges of Murder in
the Second Degree, Manslaughter, Assault in the First
Degree, and Assault in the Second degree. Self-defense
involves consideration of two issues. First, you must
determine whether the defendant did or did not use "deadly
force." Second, you must determine whether the force used
was justified. The burden is on the prosecution to prove
beyond a reasonable doubt that the force used by the
defendant was not justified. If the prosecution does not
meet its burden, then you must find the defendant not
guilty.
3/
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paroling authority; provided that persons who are repeat
offenders under section 706-606.5 shall serve at least the
applicable mandatory minimum term of imprisonment.
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The first issue is: Did the defendant use "deadly
force"?
"Deadly Force" means force which the defendant uses
with the intent of causing, or which he knows to create a
substantial risk of causing, death or serious bodily injury.
"Force" means any bodily impact, restraint, or
confinement, or the threat thereof.
If you determine that the defendant used "deadly
force", then you are to proceed to the section in this
instruction entitled "Deadly Force Used." If you determine
that the defendant did not use "deadly force," then you are
to proceed to the section in this instruction entitled
"Deadly Force Not Used." You must then follow the law in
the applicable section to determine the second issue, which
is whether the force used by the defendant was justified.
Achuo argues that this instruction was prejudicially
erroneous and misleading because "it did not require that the
jury unanimously determine beyond a reasonable doubt whether
Achuo used 'deadly force' before proceeding to the 'Deadly Force
Used' instruction." Achuo further asserts that "[d]ue to the
court's omission, the jury may not have unanimously determined
beyond a reasonable doubt that Achuo had used 'deadly force[,]'"
before evaluating whether his actions were justified.
The Hawai#i Supreme Court rejected a similar argument
in State v. Matuu, 144 Hawai#i 510, 520–21, 445 P.3d 91, 101–02
(2019). There, the court reviewed a self-defense instruction
that did not require the jury to unanimously find beyond a
reasonable doubt that the defendant had used "deadly force." Id.
at 517-18, 445 P.3d at 98-99. The court noted that the jury in
that case was first instructed on the elements of assault in the
first degree (as a lesser included offense of murder in the
second degree), which required the jury to find beyond a
reasonable doubt that: (1) the defendant caused serious bodily
injury to the victim; and (2) the defendant did so intentionally
or knowingly. Id. at 518, 445 P.3d at 99. The court reasoned
that, "[a]s 'deadly force' means 'force which the defendant uses
with the intent of causing, or which he knows to create a
substantial risk of causing, death or serious bodily injury,' the
elements of first degree assault inherently require a finding
that [the defendant used] 'deadly force[.]'" Id.; see HRS § 703-
300 (2014) (defining "deadly force"). The court observed that,
additionally, the jury was instructed that the finding as to
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assault in the first degree must be unanimous. Id. Thus, the
jury's conviction of the defendant of assault in the first degree
necessarily meant that the jury had unanimously found beyond a
reasonable doubt that the defendant had used "deadly force," and
there was no basis for the defendant's argument that the jury
might not have unanimously agreed that he had used deadly force.
Id.
There is similarly no basis for Achuo's argument here.
The jury was instructed on the elements of murder in the second
degree, which required the jury to find beyond a reasonable doubt
that: (1) Achuo intentionally or knowingly engaged in conduct;
and (2) by engaging in such conduct, Achuo intentionally or
knowingly caused the death of Jeremy Kinon (Kinon). Like the
elements at issue in Matuu, the elements of second degree murder
inherently required a finding that Achuo used "deadly force," or
"force which the defendant uses with the intent of causing, or
which he knows to create a substantial risk of causing death or
serious bodily injury." HRS § 703-300. In addition, the jury
was instructed that the verdict as to murder in the second degree
must be unanimous.4/ Thus, as in Matuu, that the jury found Achuo
guilty of murder in the second degree necessarily means that the
jury unanimously found beyond a reasonable doubt that Achuo used
"deadly force."
In Matuu, the supreme court also stated: "The
unanimity requirement as to negativing the defenses would have
been much clearer to the jury, however, if it was specifically
included in the instructions regarding the State's burden to
negative the justification defenses. We therefore provide
4/
In Matuu, the court held that the circuit court's instructions
were not prejudicially insufficient, erroneous, inconsistent, or misleading,
where the jury had been instructed in part that: (1) "The burden is on the
prosecution to prove beyond a reasonable doubt that the force used by the
defendant was not justified. If the prosecution does not meet its burden,
then you must find the defendant not guilty[;]" and (2) "a verdict must
represent the considered judgment of each juror, and in order to reach a
verdict, it is necessary that each juror agree thereto. In other words, your
verdict must be unanimous." 144 Hawai#i at 520, 445 P.3d at 101 (original
brackets omitted).
The same instructions were given in this case. Additionally, the jury
was instructed, "Your verdict must be unanimous[,]" as to each of the charged
and lesser-included offenses.
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guidance that the circuit courts should follow this practice."
144 Hawai#i at 520, 445 P.3d at 101. Achuo argues that this
language "confirms that the instructions in this case were, in
fact, prejudicially erroneous and misleading." As Achuo
acknowledges, however, the supreme court issued its opinion in
Matuu on June 28, 2019, more than three months after the circuit
court gave the self-defense instruction in this case, on
March 11, 2019. Like the circuit court in Matuu, the Circuit
Court here could not have benefitted from the supreme court's
guidance. Achuo's argument here is substantially similar to the
defendant's argument in Matuu. For the reasons discussed above,
the supreme court rejected that argument and concluded that the
challenged jury instructions, when viewed as a whole, were not
prejudicially insufficient, erroneous, inconsistent, or
misleading. Based on similar – and in some instances, the same –
instructions given here (see supra note 4), we conclude that the
jury instructions, when viewed as a whole, were not prejudicially
insufficient, erroneous, inconsistent, or misleading.
(2) Achuo contends "there was no substantial evidence
to support [his] conviction where the State failed to prove
beyond a reasonable doubt that his use of force or deadly force
was not justified in self-protection."
The Hawai#i Supreme Court has held:
[E]vidence 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 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. Indeed, even if it could be said in a
bench trial that the conviction is against the
weight of the evidence, as long as there is
substantial evidence to support the requisite
findings for conviction, the trial court will be
affirmed.
[State v. ]Eastman, 81 Hawai#i [131,] 135, 913 P.2d [57,] 61
[(1996)] (emphasis added). Substantial evidence is
"credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion." State v. Fields, 115 Hawai #i 503,
512, 168 P.3d 955, 964 (2007) (brackets omitted); see also
Eastman, 81 Hawai#i at 135, 913 P.2d at 61.
State v. Xiao, 123 Hawai#i 251, 257, 231 P.3d 968, 974 (2010)
(original brackets and emphasis omitted).
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HRS § 703-304 (2014) provides, in relevant part:
Use of force in self-protection. (1) Subject to the
provisions of this section and of section 703-308, the use
of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of
unlawful force by the other person on the present occasion.
(2) The use of deadly force is justifiable under this
section if the actor believes that deadly force is necessary
to protect himself against death, serious bodily injury,
kidnaping, rape, or forcible sodomy.
"[Self-defense] is not designated as an affirmative
defense by the Hawai#i Penal Code or any other statute[.]" State
v. Lubong, 77 Hawai#i 429, 431, 886 P.2d 766, 768 (App. 1994).
Therefore, "[o]nce evidence of [self-defense] has been adduced,
the prosecution has the burden of disproving it beyond a
reasonable doubt." Matuu, 144 Hawai#i at 520, 445 P.3d at 101
(citing State v. Culkin, 97 Hawai#i 206, 215, 35 P.3d 233, 242
(2001) (citing HRS §§ 702-205(b), 703–301(1) (1993); Lubong, 77
Hawai#i at 431, 886 P.2d at 768)).
Here, whether sufficient evidence negated Achuo's self-
protection justification requires an analysis of whether (1)
Achuo used "deadly force," as previously defined, and (2) whether
Achuo's belief as to the necessity of deadly force was
reasonable. HRS § 703-304(2); see HRS § 703-300 (defining
"believes" as "reasonably believes"). The evidence is undisputed
that during an altercation, Defendant pulled a kitchen knife from
his pants and stabbed Kinon, who died of the wound. The evidence
thus sufficiently supports a jury finding that Achuo used "deadly
force." See Culkin, 97 Hawai#i at 215, 35 P.3d at 242(concluding that the defendant's conduct constituted deadly
force, where he testified to inflicting numerous stab wounds upon
the decedent with a kitchen knife); Lubong, 77 Hawai#i at 432,
886 P.2d at 769 (concluding that the defendant's conduct
constituted deadly force, where the testimony was that the
defendant charged at an attacker with a knife).
The supreme court has adopted a two-prong test for
assessing a defendant's self-protection justification under HRS
§ 703-304:
The first prong is subjective; it requires a determination
of whether the defendant had the requisite belief that
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deadly force was necessary to avert death, serious bodily
injury, kidnaping, rape, or forcible sodomy.
. . . .
If the State does not prove beyond a reasonable doubt that
the defendant did not have the requisite belief that deadly
force was necessary, the factfinder must then proceed to the
second prong of the test. This prong is objective; it
requires a determination of whether a reasonably prudent
person in the same situation as the defendant would have
believed that deadly force was necessary for
self-protection.
Matuu, 144 Hawai#i at 520-21, 445 P.3d at 101-02 (quoting Culkin,
97 Hawai#i at 215, 35 P.3d at 242). On appeal, Achuo argues
that the evidence at trial established both the subjective and
objective prongs of his self-protection justification.
Even assuming Achuo had the requisite belief that his
use of force was necessary (first prong), we conclude there was
substantial evidence to support a finding that a reasonably
prudent person in the same situation as Achuo would not have
believed that the force exercised by Achuo was immediately
necessary for self-protection (second prong).
Achuo asserts that his use of force "was necessary to
protect himself," because he "was accosted by several drunk males
in the early morning hours while alone at a bus stop." At trial,
he testified in part, "They told me to get my bag" and "If they
don't get it, they're going to kill me." Achuo also testified:
"They kicked me, punch me"; "Then I was so confused I thought I
was going to die"; and "That time I thought I was going to die.
So that's when I took the knife and stab this guy."
At trial, however, witness BF, a teenaged minor,
contradicted Achuo's testimony. BF testified that when he and
another male, Darnel, approached the bus stop where Achuo was
standing, BF and Darnel did not say anything to Achuo, did not
make any motions toward Achuo, and were not causing trouble or
picking a fight. During cross-examination, BF also testified
that he did not punch or attack Achuo. According to BF, he and
Darnel did nothing to provoke Achuo, when Achuo pulled out a
kitchen knife from his pants. BF and Darnel backed up, and
another teenaged minor male, PP, who appeared to know Achuo, came
over, put his hands around Achuo's shoulders, and walked Achuo
away.
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BF further testified that he was sitting at the bus
stop, when he heard a commotion in a nearby alleyway by a black
truck. BF ran toward the black truck and saw Achuo stab Kinon.
During cross-examination, BF stated that he did not see Kinon
arguing or fighting with Achuo. BF further testified that, at
first, he thought Kinon was "okay 'cause he was smiling," but
when Kinon lifted up his shirt, BF "saw his guts coming – coming
out." After Kinon fell to the ground, BF chased after Achuo, who
had run "[i]nto his in-law's house."
Patrick Selip (Selip), the father of Achuo's
girlfriend, also testified at trial. Selip stated that on the
night of the incident, at 1:30 a.m., he awoke to see Achuo
standing in the middle of his room holding a knife. Selip yelled
at Achuo to "give me the knife," but Achuo "never say anything.
He just, like, freeze in the middle of the room holding the
knife[.]" When Achuo did not respond, Selip grabbed the knife
and threw it toward the table. Selip ran out of his apartment
after people outside, who were yelling and banging on his doors
and windows, broke down the door. Selip testified that when he
left his apartment, Achuo was still standing in the apartment,
conscious and uninjured.
In light of the above, as well as the other testimony
and evidence presented at trial, there is substantial evidence to
support a finding that Achuo's use of force in self-defense was
not justified. The jury could have given greater weight to the
testimony of BF and Selip, which undermined Achuo's testimony
that before stabbing Kinon, he (Achuo) was punched, kicked, and
thought he was going to die. Indeed, in light of the conflicting
testimony as to whether Achuo was attacked and how the stabbing
incident unfolded, the jury could have disbelieved Achuo's
version of events. See State v. Jhun, 83 Hawai#i 472, 483, 927
P.2d 1355, 1366 (1996) ("As the trier of fact, the jury had the
prerogative to believe [the defendant] when he admitted to the
stabbing and to disbelieve [the defendant] when he asserted that
he was merely trying to protect his brother."). On this record,
we conclude there was substantial evidence to support a finding
that a reasonably prudent person in Achuo's circumstances would
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not have believed that it was immediately necessary to stab Kinon
for self-protection.
Therefore,
IT IS HEREBY ORDERED that the Judgment of Conviction
and Sentence, entered on May 22, 2019, in the Circuit Court of
the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, January 29, 2021.
On the briefs:
/s/ Katherine G. Leonard
Salina Kanai Althof Presiding Judge
for Defendant-Appellant.
Sonja P. McCullen, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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