The state high court orders a new trial for a man convicted of assault
POSTED: 1:30 a.m. HST, Jun 20, 2011
A Honolulu man convicted of slugging his 14-year-old stepson in the face and breaking his nose should have been allowed to raise the defense that he was disciplining the teenager, a divided Hawaii Supreme Court ruled this month.
PARENTAL DISCIPLINE DEFENSEUnder state law, parents or guardians are justified in using force against their children. The force must be:
>> “Employed with due regard for the age and size of the minor.”
>> “Reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct.”
>> “Not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress or neurological damage.”
Source: Hawaii Revised Statutes
The 3-2 decision set aside the assault conviction against Cedric Kikuta and ordered a new trial because the trial judge refused to permit the jury to consider the parental discipline defense.
The majority held that the seriousness of the injuries alone do not preclude the defense. It should be left to a jury to determine whether the parent was justified in using force, the ruling said.
In dissent, the two justices said at a certain point, the use of force, such as shooting a child, is so unreasonable that the defense should be excluded. Kikuta's actions, the two said, went beyond that point.
The decision is the latest in a series dealing with the controversial issue that has split the courts here on the extent parents can use force to discipline their children.
It addresses for the first time whether the parental discipline defense can apply to a child who suffers "substantial bodily injury."
Summer Kupau, Kikuta's deputy public defender, said they were pleased with the ruling. She called the decision "fair" in upholding parents' rights to the defense and their right to discipline their children.
Loren Thomas, city deputy prosecutor in charge of the prosecutor office's appeals section, said they were disappointed. She said they agree with the dissent.
"But this is the decision of the majority and we must abide by it and it's our intention to retry the defendant," Thomas said.
Previous high court cases dealt with misdemeanor child abuses, but Kikuta's stepson suffered a fractured nose, considered a "substantial bodily injury."
Kikuta, 46, was charged with second-degree assault, which is punishable by up to five years in prison.
During the trial, Circuit Judge Rhonda Nishimura turned down a defense request to have the jury consider the parental discipline defense because the youth suffered "substantial bodily injury."
The altercation on the morning of Sept. 30, 2007, involved the father wanting the youth to clean a carpet stain caused by a dog.
Kikuta, who was in a leg cast up to his hip because of a recent surgery, testified that the youth grabbed one of Kikuta's crutches and swung it at him. Kikuta said he blocked the swing and hit the youth twice but was not aiming at his face.
The youth, 14 at the time, testified he didn't swing the crutch. He said he was punched about five times in the face. He testified that after he fell to his knees, Kikuta punched him on the back of the head two or three times.
At the time, the youth was 5 feet 10 inches to 6 feet tall and weighed about 160 pounds, according to the court record. Kikuta was 5 feet 7 inches tall and weighed as much as 190 pounds.
The jury returned a guilty verdict on the lesser offense of misdemeanor or third-degree assault. Kikuta was sentenced to two months in jail and one year of probation.
The sentence was postponed pending the appeal.
The case also split the Intermediate Court of Appeals, which ordered a new trial by a 2-1 vote because the parental discipline defense was excluded.
The prosecution asked for the high court review.
In the 50-page high court majority decision, Associate Justice Simeon Acoba emphasized they were not condoning illegal force against minors and noted the subjective nature of the issue: What one parent considers discipline may be abuse to another.
But Acoba said a defendant is entitled to have a jury consider a defense no matter how weak the evidence might be to support it.
He focused on the parental discipline law that says the defense is excluded if the force is "designed to cause or known to create a risk of causing substantial bodily injury."
"The statute does not preclude the defense on the ground that the force resulted in substantial bodily injury," he said.
Rather, the "nature of the force" is the key as to whether the defense applies, and the matter should be left to the jury, he said.
Joining him in the opinion were Associate Justice Jim Duffy and Michael Wilson, a substitute associate justice, who also wrote his own concurring opinion.
Associate Justice Paula Nakayama was joined in dissent by Chief Justice Mark Recktenwald.
Nakayama's 13-page opinion cited three previous Hawaii appeals courts' rulings that found the use of force to fall outside parental discipline.
The decisions involved hitting a minor in the face and striking her with a plastic bat until it broke; kicking a girl in the shin, slapping her and punching her in the face; and punching a minor five times and kicking him.
"Likewise, this court has not approved the use of a minimum of two punches to a minor's face resulting in a broken nose and chipped teeth for parental discipline," Nakayama said.
She said "Kikuta's use of force therefore was not moderate or ‘reasonably related' to the (stepson's) welfare."
The trial judge, she said, properly excluded the defense.
A snapshot of past court rulings on whether the use of force was discipline or the crime of abuse: >> A boyfriend of the mother of a 17-year-old boy kicked and slapped the teen when he failed to correctly grate cheese for tacos. DISCIPLINE.
>> A mother hit her 14-year-old daughter with a backpack, a plastic hanger, a small brush and a tool’s plastic handle. The girl was doing poorly in school and was hanging out with friends instead of attending tutoring. DISCIPLINE.
>> A boyfriend of the mother of a 14-year-old girl hit the teen on both sides of her face, knocked her to the ground, threw her on a bed, pulled off her pants and underwear, hit her buttocks and hit her with a plastic baseball bat until it broke. The girl had falsified a school report of her grades and attendance. ABUSE.
>> A father kicked his 14-year-old daughter in the shin, slapped her face five to 10 times, stomped on her face and pulled her ears. The girl had run away with her boyfriend the day she was to take a pregnancy test. She was beaten after she didn’t respond when confronted about her relationship with the boyfriend. ABUSE.
>> A father hit his 17-year-old daughter above the knees with a belt and cut her waist-long hair. The girl’s friends were at the home after he warned her not to have them over. DISCIPLINE.
>> A father slapped his daughter in the face, repeatedly punched her in the shoulders and slapped her again. The girl had used profanity. DISCIPLINE.
>> An uncle hit his 11-year-old nephew five times, kicked him and pulled him by the ear and hair. The boy was angry at his uncle and left him when they were stopped at a gas station. ABUSE.