Summary
noting that family abuse does not possess a statutory provision that mutual affray is a mitigating defense, but petty misdemeanor assault does possess such a provision
Summary of this case from State v. FriedmanOpinion
NOS. 13614, 13673
January 29, 1990
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT HONORABLE DARRYL Y.C. CHOY, JUDGE.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT HONORABLE WILLIAM SMITH, JUDGE HONORABLE DARRYL Y.C. CHOY, JUDGE, (FC-CR. NO. 88-3322)
LUM, C.J., PADGETT, AND WAKATSUKI, JJ., AND RETIRED JUSTICE NAKAMURA, ASSIGNED BY REASON OF VACANCY, AND INTERMEDIATE COURT OF APPEALS CHIEF JUDGE BURNS, IN PLACE OF HAYASHI, J., RECUSED
Phyllis Hironaka, Deputy Public Defender ( James Tagupa, Deputy Public Defender, and Richard W. Pollack, Public Defender, on the briefs) for Defendants-Appellants.
Vickie L. Silberstein ( Wallace W. Weatherwax on the brief in No. 13673), Deputy Prosecuting Attorneys, for Plaintiff-Appellee.
In these two cases, Defendant-Appellant John Deeter and Defendant-Appellant Michael A. Coyle each appeals from his conviction of the crime of Abuse of Family and Household Members, Hawaii Revised Statutes (HRS) § 709-906 (1985). Each had a non-jury trial, was charged and convicted only under HRS § 709-906. On appeal each contends that the judge's finding that a mutual affray occurred is a defense to the crime. We disagree.
Although HRS § 707-712(2) (1985) on Third Degree Assault does provide 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, no similar provision is made in HRS § 709-906, Abuse of Family and Household Members. Mutual affray, therefore, is not a defense to the crime of which Appellants were convicted, Abuse of Family and Household Members, HRS § 709-906.
HRS § 707-712(2) reads: "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."
We do not decide the contested issue of whether Third Degree Assault committed in a mutual affray, HRS § 707-712(2), is a lesser included offense of the charged Abuse of Family and Household Members, HRS § 709-906, because a decision on that issue is not relevant to a determination of the present cases. Being guilty of a lesser included offense is not a defense to a conviction of the greater offense. State v. Sneed, 68 Haw. 463, 464, 718 P.2d 280, 281 (1985).
The convictions are affirmed.