" This court's power to deal with plain error "is one to be exercised with caution because the plain error rule represents a departure from a presupposition of the adversary system — that a party must look to his or her counsel for protection and bear the cost of counsel's mistakes." Raines v. State, 79 Haw. 219, 226, 900 P.2d 1286, 1293 (1995) (quoting State v. Kupau, 76 Haw. 387, 393, 879 P.2d 492, 498 (1994)); State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 675-76 (1988). "[T]he decision to take notice of plain error must turn on the facts of the particular case to correct errors that `seriously affect the fairness, integrity, or public reputation of judicial proceedings.

We affirm the affirmance by the Intermediate Court of Appeals (the ICA) of the June 19, 1998 judgment of conviction and sentence of Petitioner-Appellant Oliver Haanio, Jr. (Petitioner) for the included offense of robbery in the second degree, Hawaii Revised Statutes (HRS) § 708-841 (1993). However, we disagree with the ICA's reformulation of the standard established in State v. Kupau, 76 Haw. 387, 879 P.2d 492 (1994), for governing a trial court's discretion in giving included offense instructions. For that reason, and to clarify other grounds for affirming Petitioner's conviction, we granted certiorari herein.

In reaching its decision, the circuit court concluded that the statute of limitations under HRS § 701-108(2)(d) was jurisdictional and could not be waived. The circuit court also concluded that this court's holding in State v. Kupau, 76 Haw. 387, 879 P.2d 492 (1994), mandated that trial courts give a jury instruction for a time-barred lesser included offense even without a request from a party. The prosecution's timely appeal pursuant to HRS § 641-13(9) (1993) followed.

[Id.] (holding that the trial court's erroneous instruction on the nonexistent included offense of "attempted reckless manslaughter" was "harmless beyond a reasonable doubt" where the jury reached a unanimous guilty verdict as to the charged offense of attempted murder in the second degree). To the extent that [State v.]Kupau[, 76 Haw. 387, 879 P.2d 492 (1994),] held that the failure to give an included offense instruction was plain error even when the defendant was convicted of the charged offense, see [id.] at 396, 879 P.2d at 501, it conflicts with the rationale of Holbron, which we reaffirm here and, in that aspect, [Kupau] can no longer be regarded as controlling. In State v. Kupau, 76 Haw. 387, 879 P.2d 492 (1994), Kupau was charged with assault in the second degree.

In State v. Ferreira, 8 Haw. App. 1, 4-5, 791 P.2d 407, 409 (1990), this court concluded that "[i]n cases involving one or more included offenses, [the] statutes mandate the giving of included offense instructions over both the prosecution's and defendant's objection." In State v. Kupau, 10 Haw. App. 503, 879 P.2d 559, aff'd, 76 Haw. 387, 879 P.2d 492 (1994), the State did not request, Kupau did not object to, and the court did not give an included offense instruction. Kupau was convicted of Assault Second. Consistent with Ferreira, supra, this court decided that it was plain error not to instruct on Assault Third and concluded "that the interests of justice require that a jury in a criminal case be instructed on every included offense reasonably warranted by the evidence."

Additionally, allowing defendants to waive the EMED defense when it is raised by the evidence would "unduly complicate[ ] the trial court's ultimate obligation to promote justice in criminal cases." Id. at 414, 16 P.3d at 255 (citing State v. Kupau, 76 Hawai‘i 387, 879 P.2d 492 (1994) ). Prior to Haanio, this court in Kupau attempted to resolve the issue of the trial court's duty to give included offense instructions by balancing all of the relevant interests of the State and the defense.

B.In its Answering Brief , the State argued that there was no rational basis in the evidence to give the Unlawful Imprisonment instruction, and that even assuming, arguendo , that there was a basis for the instruction, the court's failure to give it was harmless pursuant to State v. Haanio, 94 Hawai‘i 405, 415–16, 16 P.3d 246, 256–57 (2001), because Flores was convicted of the greater offense of Kidnapping. The State asserted that pursuant to State v. Kupau, 76 Hawai‘i 387, 395, 879 P.2d 492, 500 (1994), overruled on other grounds by Haanio, 94 Hawai‘i at 407, 16 P.3d at 248, a "trial court ‘is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.’ " Kupau, 76 Hawai‘i at 390, 879 P.2d at 495 (citing HRS § 701–109(5) (1993)).

The State agrees this instruction should have been given, but disagrees with Brum that the failure to give this instruction prejudiced Brum. Brum relies on State v. Kupau, 76 Haw. 387, 879 P.2d 492 (1994). In Kupau, the defendant was charged and convicted of Assault in the Second Degree. The Hawai`i Supreme Court found the trial court erred by failing to present to the jury an instruction on the included offense of Assault in the Third Degree.

14 For example, although there may be sufficient evidence to support a guilty verdict as to a charged offense, if the weight of the evidence is to the contrary but supports guilt as to an included offense, the trial judge would be justified in giving an instruction regarding the included offense, even if it has not been requested by the prosecution and the defendant has expressly objected to it for tactical reasons.State v. Kupau, 76 Haw. 387, 393-96, 879 P.2d 492, 498-01 (1994) (citations omitted). In Kupau, the Hawaii Supreme Court stated the following two requirements.

Furthermore, finding that assault in the first degree is a less serious degree of injury or risk of injury than murder in the second degree is consistent with the concept that a defendant may act intentionally or knowingly with respect to the conduct, but not as to the result of the conduct. For example, in State v. Kupau (Kupau II), 76 Hawai‘i 387, 391, 879 P.2d 492, 496 (1994), overruled on other grounds byState v. Haanio, 94 Hawai‘i 405, 16 P.3d 246 (2001), in the context of an assault case, the court explained that the defendant could have acted intentionally or knowingly with respect to his conduct, and the victim could have in fact suffered substantial bodily injury as a result thereof. However, if the defendant did not act intentionally or knowingly with respect to that result of substantial bodily injury, but only acted recklessly with respect to the result, then the defendant "may, depending upon the circumstances," only be guilty of the lesser included offense of assault in the third degree (requiring intentional, knowing or reckless state of mind) rather than the charged offense of assault in the second degree (requiring intentional or knowing state of mind).Id. at 391–92, 879 P.2d at 496–97.