***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** Electronically Filed Supreme Court SCWC-12-0000588 20-MAR-2017 08:41 AM

SCWC-12-0000588

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,

vs.

SCOTT YANG, Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000588; CR. NO. 10-1-0899)

SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ., and Circuit Judge Kuriyama, in place of Wilson, J., recused)

Petitioner/Defendant-Appellant Scott Yang seeks review

of the July 1, 2016 Judgment on Appeal of the Intermediate Court

of Appeals (ICA), entered pursuant to the ICA’s May 12, 2016

Summary Disposition Order. The judgment affirmed the Circuit

Court of the First Circuit’s (circuit court) May 12, 2012 ***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

Judgment,1 which convicted Yang of Counts VI and VIII in

violation of Hawai'i Revised Statutes (HRS) § 709-906(1)2 and (5).3

On certiorari, Yang contends that the ICA erred in

holding that (1) regarding Count VI, the self-defense and defense

of others jury instructions were not plainly erroneous; and (2)

regarding Count VIII, the circuit court did not err in refusing

the time-specific elements instruction and denying his motion to

The Honorable Michael D. Wilson presided.

HRS § 709-906(1) (Supp. 2012) provides:

(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.

HRS § 709-906(5) (Supp. 2012) provides:

(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a “repeat offender” and serve a minimum jail sentence of thirty days.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

dismiss and motion for judgment of acquittal.

This court accepted Yang’s application for writ of

certiorari, and we now affirm the ICA’s judgment on appeal as to

Count VI, vacate the ICA’s judgment on appeal and the circuit

court’s judgment as to Count VIII, and remand the case to circuit

court as to Count VIII for further proceedings.

With respect to the self-defense jury instructions

given as to Count VI, we conclude that the circuit court properly

gave the relevant jury instructions. Thus, the ICA did not err

in affirming the circuit court’s judgment as to Count VI.

With respect to Count VIII, we conclude that the

circuit court erred in denying Yang’s motion to dismiss. We find

persuasive Yang’s argument that the trial testimony of the

complaining witness created a material time variance from the

State’s response to the notice of alibi, thereby undermining the

defense that Yang prepared. We further note that the State

conceded in its closing argument that it did not prove Count VIII

beyond a reasonable doubt. However, we conclude that there was

sufficient evidence to support a conviction, and that the circuit

court did not err in denying the motion for judgment of

acquittal.

Accordingly, we affirm the ICA’s July 1, 2016 Judgment

on Appeal as to Count VI, and vacate the ICA’s July 1, 2016

Judgment on Appeal and the circuit court’s May 12, 2012 Judgment

***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

as to Count VIII, and remand the case to circuit court for further proceedings consistent with this Order.

DATED: Honolulu, Hawai'i, March 20, 2017.

Phyllis J. Hironaka /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Brian R. Vincent for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Christine E. Kuriyama